MacKintrush v. State

• Decision Date: 22 December 1997
• Docket Number: No. CA,CA
• Citation: 959 S.W.2d 404,60 Ark.App. 42
• Parties: Walter Ray MacKINTRUSH, Appellant, v. STATE of Arkansas, Appellee. CR 97-145.
• Court: Arkansas Court of Appeals

Page 404

959 S.W.2d 404

60 Ark.App. 42

Walter Ray MacKINTRUSH, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 97-145.

Court of Appeals of Arkansas Divisions III and IV.

Dec. 22, 1997.

R.S. McCullough, Little Rock, for Appellant.

Winston Bryant, Attorney General, Kelly Terry, Assistant Attorney General, Little Rock, for Appellee.

STROUD, Judge.

Ogretta MacKintrush, wife of Walter MacKintrush, died at home at approximately 3:00 a.m. on October 17, 1994. Mr. MacKintrush, who had called 911 to report that his wife was not breathing, was subsequently charged with first-degree murder. A trial was held in October 1995, but the jury deadlocked 11-1 and a mistrial was declared. A second trial was continued when a witness did not appear and was reset for July 30, 1996. At the trial which began on that date, Mr. MacKintrush was found guilty of murder in the second degree and he was sentenced to twenty years in the Arkansas Department of Correction.

Mr. MacKintrush appeals the conviction, raising five points of error. He contends that the trial court erred when it 1) denied him relief for alleged discovery violations by the State, 2) refused to grant a writ of mandamus to compel the sheriff to serve a subpoena, 3) allowed the medical examiner to testify outside his area of qualification, 4) permitted the State to use a peremptory challenge against a potential black juror, and 5) denied his mistrial motion based upon the racial make-up of the jury panel. Mr. MacKintrush filed a motion to transfer his appeal to the Arkansas Supreme Court. Although we determined that none of his asserted reasons supported the request, we recommended certification under Ark. Sup.Ct. R. 1-2(a)(5) because the case involved a petition for mandamus directed to "state, county, or municipal officials." Certification was refused on June 9, 1997. We affirm the conviction, addressing the points as they were presented by appellant.

I. The trial court erred by not granting relief on the fact of the State's failure to provide witness information and in particular, exculpatory information.

Rule 19.2 of the Arkansas Rules of Criminal Procedure imposes upon a party a continuing duty to disclose, after compliance with the rules of discovery or a court order, if it discovers additional material or information comprehended by a previous request to disclose. Rule 17.1(d) requires a prosecutor to disclose promptly any material or information tending to negate the guilt of a defendant or tending to reduce his punishment. Under Rule 19.7, the trial court may order any of four sanctions against a party that fails to comply with a discovery rule or order: the discovery or inspection of materials not previously disclosed, a continuance, prohibition from introducing in evidence the undisclosed material, or such other order as the court deems proper.

In the instant case, appellant filed a motion for discovery before the first trial. The State responded with an open file policy, and the trial court ordered that discovery be supplied by June 12, 1995. Appellant complains on appeal, as he did during his trial, that the State violated its discovery obligations by failing to inform him of the existence of statements by Cynthia Marks and Jewel Williams.

Cynthia Marks's statement was that the victim had told her that appellant had filed for divorce previously, in the spring of 1994; that appellant thought the victim was having an affair; that he would kill her if he found it to be so, and no one would know how; and that appellant was "crazy." Ms. Williams's statement was that about two weeks before the murder the victim had said that appellant was going to divorce her, and that she had come to work a few days before her death with a cut inside her bottom lip and with scratches and bruises on her neck resembling a hand print.

We address discovery of the two statements separately, beginning with that of Ms. Marks.

Statement of Cynthia Marks

When the State called Ms. Marks to testify, appellant objected on the basis that the State had not disclosed her as a witness. The prosecutor responded that she had been disclosed at the current trial and at the previous one, where she had been introduced but had not testified. The State was unable at that time to show that the defense had been notified, withdrew Ms. Marks as a witness, and stated that it would call her later. The trial court conducted hearings on the issue of disclosure, which we review below. Finding that the State had notified defense counsel of Ms. Marks's statement, the trial court ruled that she could testify after defense counsel visited with her. The State, however, later decided that it would not call Ms. Marks, and she never testified at trial.

At a hearing the day after his objection to Ms. Marks's testimony, defense counsel reiterated his position that her statement was a surprise. The prosecutor stated that her name had not been in the file originally supplied under the open file policy but had appeared on papers of "names provided" and that the prosecutor's policy was always to call about a new witness and leave a message. Defense counsel responded that the name had not been in the file and that no message had been left about Ms. Marks. The court told the prosecutor that until she could show "something that shows that you have had it in your file or that you notified him of it," the witness could not testify. The court noted that Ms. Marks appeared to be a major witness and announced that it would take a short recess to research the matter of allowing her to testify after defense counsel had a chance to visit with her.

When the proceedings continued, the prosecutor produced a photocopy of a June 19, 1995, fax that summarized Ms. Marks's testimony. The prosecutor explained that the assistant prosecutor had found it in his file, that the assistant's file contained only copies of her file, and that she had overlooked the photocopy. Defense counsel stated that he had never seen it before, nor had he seen the statement of Jewell Williams which was attached as another page. The prosecutor stated that the State did not plan to call Ms. Williams. When the court asked defense counsel when he had reviewed the State's file, defense counsel said that his investigator had reviewed it after June 19.

The trial court accepted into evidence Exhibit No. 2, which is a photocopy of pages 2 and 3 of a fax dated June 19, 1995. At the top of both pages a line of print reads, "LRPD DETECTIVE DIV FAX NO. 5013993448." One page summarizes Ms. Williams's statement and the other summarizes the statement of Cynthia Marks.

After taking a recess to examine the evidence, the rules of criminal procedure, and case law, the court issued the following ruling on allowing Ms. Marks to testify:

According to the photocopies of the statements ... dated June 18th, '95, 10:45, this states the existence of this witness, Marks, and a general statement of what she was to testify to. This would have been after a Court Order closing discovery some six days before. A fax mark on both of these two pages ... shows June 19th of '95, although it doesn't directly say it's faxed to the prosecutor's office, that is the indication of it. So that means under 19.2 the State had a duty to disclose this. The State has an open file policy. And the Defense affirmatively states that after that date they did review or a member of their staff ... reviewed that file, which means there was opportunity there....

Now, Rule 19.7 says that if there was a violation of this Order, which the Court is not finding, ... the Court has about four different things that it can do.... I think that the proper order in this case would be to allow the defendant an opportunity to interview this witness before we go further. Therefore, I'm going to recess this jury until 9:15 in the morning to give counsel an opportunity to do that, and order the State to make this witness available to them in the interim.

The trial court has broad discretion in matters pertaining to discovery, which will not be second-guessed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). It is incumbent upon appellant to demonstrate actual prejudice resulting from an asserted discovery violation. Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994). Even where a discovery violation has occurred, we will not reverse if the error is harmless. See Mosley v. State, 323 Ark. 244, 914 S.W.2d 731.

Here, because Ms. Marks never testified, appellant was not prejudiced by any alleged discovery violations regarding her statement. Additionally, her statement was inculpatory because it referred to appellant's alleged threat to kill his wife. Thus, the State had no obligation to disclose it as an exculpatory statement under Arkansas Rule of Criminal Procedure 17.1. Even if we were to find that a discovery violation existed, which we do not, the error was clearly harmless. We find no error in the trial court's refusal to grant sanctions regarding this matter.

Statement of Jewell Williams

The trial court heard testimony by the prosecutor, Terry Raney-Ball, and defense counsel, R.S. McCullough, regarding discovery of the statement of Jewell Williams. Mr. McCullough asked the court to dismiss the charges, declare a mistrial, or grant a continuance because of the State's failure to inform him about her statement. He based his motion on Arkansas Rule of Criminal Procedure 17.1, contending that the statement was exculpatory and that the State was therefore obligated to inform him of its existence. He argued that the statement could implicate someone else because, several days before her death, appellant's wife had injuries and she did not attribute them to appellant. Ms. Ball asserted that the State had faxed Ms. Jewell's statement to defense counsel on March 5, 1996. She produced a fax cover sheet and...