Leaks v. State

• Decision Date: 12 May 1999
• Docket Number: No. CA,CA
• Citation: 990 S.W.2d 564,66 Ark.App. 254
• Parties: Bruce Edward LEAKS, Appellant, v. STATE of Arkansas, Appellee. CR 98-663.
• Court: Arkansas Court of Appeals

Page 564

990 S.W.2d 564

66 Ark.App. 254

Bruce Edward LEAKS, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 98-663.

Court of Appeals of Arkansas,

Divisions I and II.

May 12, 1999.

James Duncan Pedigo, Public Defender Office, Texarkana, for appellant.

J. Winston Bryant, Atty. Gen., by: Kent G. Holt, Asst. Atty. Gen., for appellee.

JUDITH ROGERS, Judge.

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, he argues that the trial court abused its discretion in limiting his cross-examination of a State's witness, and that the trial court erred in allowing the prosecutor to argue to the jury that he could have been charged with capital murder. We find no reversible error, and affirm.

Appellant does not challenge the sufficiency of the evidence; however, a recitation of the facts is necessary for an understanding of our decision and the arguments on appeal. Appellant was convicted of the shooting death of William Littlejohn. Appellant admitted to shooting the victim but contended that he did so because he feared for his life. The victim, appellant's former roommate, was living with appellant's brother at the time of the incident. On the night of January 7, 1997, appellant went to his brother's home to confront the victim about money that the victim owed him and about the victim allowing several women to wash their clothes at the house while his brother was away. Appellant testified that he had been drinking on the day of the incident. He further testified that he had taken a gun with him because the victim had previously assaulted him and cut him with a razor blade. Appellant claimed that he only intended to talk to the victim, and that he shot him because he thought the victim was reaching into his pocket for a weapon. Appellant testified that he did not mean to kill the victim.

Appellant left the house immediately after the shooting. Appellant's nephew, who had been in a back bedroom, testified that the victim came into his bedroom and told him that appellant had shot him. Although appellant initially denied any knowledge of the shooting to the police, he later admitted that he had shot the victim after the police recovered the gun involved in the shooting from a car owned by appellant's girlfriend. The coroner determined that a single gunshot wound to the chest caused the victim's death. The jury was given instructions on the elements of first and second-degree murder.

Appellant first argues that the trial court erred in limiting his cross-examination of a State's witness, Bennie Smith about her relationship with another State's witness, George Cheatham. Smith testified that she had been given permission by the victim to do laundry at the house on the night of the shooting, but had left prior to appellant's arrival. She also testified that at one time she had heard appellant say that his girlfriend had cut him. Smith had also testified on direct examination that she had dated Cheatham.

On cross-examination, Smith stated that "I guess I have a problem with George Cheatham." When appellant's counsel asked her what the problem was, the State objected based on relevancy. Appellant's counsel argued that the question went to Smith's credibility; the trial court sustained the State's objection.

Appellant contends that the trial court abused its discretion in not allowing a complete cross-examination of Smith, thereby denying the jurors potentially vital information regarding her credibility and potential bias. However, we are precluded from addressing the merits of this issue because appellant failed to proffer the excluded testimony.

Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court, and rulings in this regard will not be reversed absent an abuse of discretion. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). In order to challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so that we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). The failure to proffer evidence so this court can determine if prejudice results from its exclusion precludes review of the evidence on appeal. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985); Willett v. State, 18 Ark.App. 125, 712 S.W.2d 925 (1986).

In the instant case, the trial court precluded appellant's cross-examination of Smith about her relationship with George Cheatham based on the prosecutor's objection to the line of questioning as irrelevant. Although appellant contends that the trial court's exclusion of the testimony was erroneous, he did not proffer the excluded testimony, nor is its substance apparent from the context of the question posed to Smith. Absent a proffer of the expected testimony, this court cannot find an abuse of discretion by the trial court. Willett v. State, supra. Consequently, we cannot determine if prejudice results from its exclusion. Jackson v. State, supra.

Appellant next argues that the trial court erred in overruling his objection to remarks made by the prosecutor during closing arguments. Appellant contends that it was improper for the prosecutor to include anything in his closing arguments except the evidence in the case and deducible conclusions that may be made from the law applicable to a case. During the prosecutor's closing, the following argument and objection occurred:

STATE: ... Mr. Leaks, he's a lucky man. He's already been given a break when he wasn't charged with the premeditated killing of Mr. Littlejohn. If you kill somebody with a premeditated and deliberated purpose of doing so, if you think about it and plan on it and deliberate on it, that's one of the differences between murder in the first degree and capital murder. But, the decision was made right or wrong not to charge him with capital murder and not to seek the death penalty. We charged him with murder in the first degree. So, he has already been given a break in that regard.

DEFENSE COUNSEL: I'm going to have object to that line of argument. He's arguing that this is a capital murder case and through the good graces of the Prosecuting Attorney's Office, they have not charged him with that, that's highly improper.

STATE: Judge, he was arguing and representing in his opening comments that the defendant ought to be charged with, that he ought to be convicted of murder in the second degree. He's asking the jury or representing to the jury that they ought to give him a break. I'm telling the jury now that after the evidence has been presented which the evidence justifies not giving him any more breaks.

COURT: Objection overruled.

After the jury retired, appellant made a motion for mistrial based on the prosecutor's remarks. The prosecutor responded that the motion was untimely, and the trial court denied the motion without further comment.

A trial court is given broad discretion in controlling counsel in closing arguments, and we do not disturb the trial court's decision absent a manifest abuse of discretion. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Indeed, remarks that are so prejudicial as to mandate a reversal are rare and require an appeal to the jurors' passions. Id. The jury is presumed to follow the court's instructions. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).

We affirm the trial court's ruling based on procedural errors as discussed below. Moreover, we conclude that the evidence of guilt is so overwhelming that any error, although not sanctioned by this court, is harmless in the context of this case.

Here, appellant failed to request any further relief when his objection was overruled, and he failed to move for a mistrial until after the jury had retired. It has repeatedly been held that motions for mistrial must be made at the first opportunity. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).

These holdings are squarely based on settled law that for the trial court to have committed reversible error, timely and accurate objections must have been made so that the trial court could be provided with the opportunity to correct such error. See e.g., Wallace v. State, 53 Ark.App. 199, 920 S.W.2d 864 (1996). Errors arising from improper argument are frequently curable by admonition to the jury, and the trial court should have recourse to this option because his presence in the courtroom puts him in a superior position to evaluate the degree of prejudice that might arise from the improper argument, and because of the enormous waste of judicial resources which must inevitably result from declaring a mistrial when a case is all but concluded.

In Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990), the supreme court refused to find reversible error when the prosecutor during closing argument made reference to witnesses who did not testify at the trial. The court held:

The appellant objected to the statement on the basis that the defendant does not have to prove his innocence. The objection was overruled, and the appellant made no further motion or request for relief in the nature of a request for a mistrial, a striking of the statement, or a limiting instruction. In the absence of a proper request for, and a denial of, specific relief sought by appellant, we decline to hold that the ruling of the trial court to the appellant's general objection was reversible error. The appellant now also argues for the first time that the remark...