McKinney v. State

• Decision Date: 01 October 1990
• Docket Number: No. CR,CR
• Citation: 303 Ark. 257,797 S.W.2d 415
• Parties: Alex McKINNEY, Appellant, v. STATE of Arkansas, Appellee. 90-95.
• Court: Arkansas Supreme Court

Page 415

797 S.W.2d 415

303 Ark. 257

Alex McKINNEY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-95.

Supreme Court of Arkansas.

Oct. 1, 1990.

Bill [303 Ark. 258] Bracey, Jr., Blytheville, for appellant.

Ann Purvis, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Alex McKinney, was convicted of murder in the first degree for the shooting death of his girl friend, Lora Chapman, and sentenced to 40 years imprisonment.

On appeal, McKinney argues that: 1) the trial court erred in granting the jury's request, during deliberation, to rehear the court reporter's audio tape of a prosecution witness; and 2) the verdict was not supported by sufficient evidence. We disagree and affirm.

Since McKinney's second contention is that the evidence was insufficient to sustain the verdict, we will consider it first.

SUFFICIENCY OF THE EVIDENCE

On the morning of March 26, 1989, McKinney and Lora Chapman, who resided together with their three-year-old daughter, began arguing. Testimony at trial revealed that the couple came in and out of the house and argued in and around the cars parked in the carport and yard. During their arguments, Lora Chapman was shot.

Witnesses who heard the gunfire all claim to have heard at least two shots. One neighbor claimed she heard three "popping" noises. McKinney's next door neighbor, James Moore, testified that when he first heard the arguing from his window, he observed Lora Chapman sitting inside a white Cadillac parked in their carport and McKinney standing by the driver's side. The couple returned inside with McKinney holding a gun and following behind Ms. Chapman. Moore later witnessed the couple walking around the other car, a brown Citation, with McKinney still in possession of the revolver. At that time he called the police. Moore subsequently heard two shots but did not witness the shooting.

Lora Chapman's aunt, Jeana Henton, was inside the couple's house and was awakened by their talking. She heard them go in and out of the house several times and observed them arguing in the carport from the living room window. Henton later heard a gunshot, returned to the window, and witnessed McKinney shoot Lora Chapman. "I saw her run around to the driver's side and as soon as she got there, he shot."

McKinney, testifying in his own defense, claimed the shooting was an accident. He stated initially that Ms. Chapman had procured a gun from the Cadillac and that he had taken it from her. Later, during a chase around the Citation, in which he was attempting to retrieve the car keys from Ms. Chapman, the gun accidentally discharged.

According to Dr. Fahmy Malak, state medical examiner, the bullet entered the upper lip and traveled downward, and from left to right, and lodged above the right collar bone. It was Dr. Malak's opinion that the bullet was fired from a distance of four to five feet.

Further testimony from Berwin Moore, a firearms' expert with the state crime lab, established that in testing the revolver, he was unable to get the gun to discharge accidentally.

At the close of the state's case, and at the conclusion of the trial, McKinney moved for a directed verdict on the basis that there was insufficient evidence in which the jury could find McKinney guilty of first degree murder. Both motions were denied. In determining whether there is substantial evidence to support the verdict, we review the evidence in the light most favorable to the appellee and consider only the testimony which tends to support the guilty verdict. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Substantial evidence has been defined as evidence which is of sufficient force that will compel a conclusion one way or another. The evidence must be beyond mere suspicion or conjecture. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).

Based on the testimony at trial, we conclude that there was substantial evidence to support the jury's verdict of murder in the first degree. Witnesses heard at least two shots and observed the couple outside arguing. McKinney was seen holding a revolver, and Jeana Henton claims to have seen him intentionally shoot Lora Chapman. McKinney argues that Henton's testimony is suspect because of her relationship to the victim and the fact that she was not wearing her glasses at the time of the incident. We have long held, however, that credibility of witnesses is for the jury to determine. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989).

McKinney further contends that the jury relied on circumstantial evidence

for their finding of premeditation and deliberation, and that no motive had been established. First, the law assigns equal weight to direct and circumstantial evidence in determining whether there is substantial evidence to support the jury's verdict. Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989). Furthermore, Henton's testimony that she saw McKinney shoot the victim is not circumstantial, but rather direct evidence of McKinney's state of mind. It is well established that premeditation and deliberation need not exist for any length of time and can be formed on the spur of the moment. See Ford v. State, 297 Ark. 77, 759 S.W.2d 556 (1988); Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). Evidence of motive, existing before the commission of the crime, may be relevant to the defendant's mental state, but is not required. The sudden, yet deliberate, action of McKinney revealed through Jeana Henton's testimony, in addition to other evidence established at trial such as the firing of two shots, was enough to warrant the jury's finding of first degree murder.

REHEARING OF TESTIMONY

McKinney argues that the trial court erred in allowing the jury to rehear certain testimony during its deliberation. The record reveals that, during their deliberation, the jury members returned to open court whereupon the foreperson related that "the jury had a question about Mr. Moore's testimony, about the time and time frame, in any way that we can." The trial judge responded that the jury could request to hear any portion of the testimony over again; the foreperson then requested they be allowed to do so. Thereafter, Moore's testimony, recorded on audio tape, was played to the jury. McKinney objected, claiming that it was prejudicial error to allow the jury to single out certain testimony, thereby lending undue emphasis and credit to one witness.

On appeal, McKinney supports his objection to the playing of the recorded testimony by contending that the trial court violated a provision of Ark.Code Ann. § 16-89-125(e) (1987), thus denying him due process.

We note that this exact contention was not raised at trial and ordinarily we do not consider different grounds for objection on appeal. See Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). However, because McKinney's objection at trial was, in substance, a due process objection and touched on the circumstances under which a trial judge can provide the jury with additional information during deliberation, as governed by the foregoing statute, we find his argument to be sufficiently before us on appeal.

Section 16-89-125(e) states:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties. (Emphasis ours.)

McKinney argues that this section establishes a prerequisite that there must be a showing to the trial court that a disagreement exists between them before the jury can receive the requested information and that the trial court erred as no such "disagreement" was shown, rather only an assertion that they had a "question."

McKinney cites Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986) and Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978) for our holding that the provisions of the statute are mandatory and should be strictly construed. Tarry and Williams are easily distinguishable from the present case. In Tarry, we found prejudice to the defendant because the judge entered the jury room and entertained questions from the foreman. Williams involved a situation where the jury asked the bailiff, at the door to the jury room, whether "it would matter" if one of the jurors was acquainted with the state's witness. Our concern in both cases was that the jury's inquiries were not made in open court in the presence of each other and in the presence of counsel. It was this concern, that the procedural requirements of section 16-89-125(e) be followed, that prompted our admonition of strict compliance with the statute.

On several other occasions we have made mention that section 16-89-125(e) is mandatory. However every one of these cases, without exception, involved communications between the court and less than the full jury, or communications made either out of open court or outside the presence of counsel. See generally, Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986); Golf v. State, 261 Ark. 885, 552 S.W.2d 236 (1977); Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973); Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971); Rollie v. State, 236 Ark. 853, 370 S.W.2d 188 (1963); and Aydelotte v. State, 177 Ark. 595, 281 S.W. 369 (1926). From this history, it is apparent that our requirement that the statute be strictly followed focuses not on the express reason for the jury to request the information, but the procedure by which the request is presented. This concern is evident from our holding in Rollie, supra, in which we said:

This statute requires in unambiguous language that the entire jury and no less a number thereof must be present before the court and counsel for the parties, or notice given to coun...