McLennan v. State

• Decision Date: 18 March 1999
• Docket Number: No. CR,CR
• Citation: 987 S.W.2d 668,337 Ark. 83
• Parties: James Vernon McLENNAN, Appellant, v. STATE of Arkansas, Appellee. 98-760.
• Court: Arkansas Supreme Court

Page 668

987 S.W.2d 668

337 Ark. 83

James Vernon McLENNAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 98-760.

Supreme Court of Arkansas.

March 18, 1999.

Brenton D. Bryant, Fayetteville, for appellant.

Winston Bryant, Atty. Gen., Kelly S. Terry, Asst. Atty. Gen., Little Rock, for appellee.

LAVENSKI R. SMITH, Justice.

Appellant James Vernon McLennan ("McLennan") appeals his conviction on three counts of terroristic acts, one count of aggravated assault and one count of felon in possession of a firearm from the Washington County Circuit Court. All the charges arose from an incident in which appellant fired multiple shots from a handgun into his former girlfriend's apartment. His aggregate sentence is 540 months in the Arkansas Department of Correction. This case was certified to the Arkansas Supreme Court pursuant to Ark. Sup.Ct. R. 1-2(b)(6) for an interpretation of Ark.Code Ann. §§ 5-13-310(a)(2) (Repl.1997) and 5-1-110(a)(5) (Repl.1997).

Appellant raises three points for reversal on appeal. Appellant first contends that his convictions on three counts of terroristic acts rather than on one count violated his Fifth Amendment right to be free from double jeopardy. He contends that his shooting into the apartment was an uninterrupted and continuous act and not a series of three separate acts. Appellant next contends that the trial court erred in denying his motion to suppress his pretrial statements made during interrogation based on the circumstances surrounding his waiver of his constitutional rights. Finally, appellant contends that the trial court erred in overruling his objection regarding the introduction of the victim's testimony regarding an attempted bribe by appellant to induce the victim not to testify at the trial. We find no merit in any of appellant's contentions and affirm.

On September 23, 1997, appellant appeared at the apartment of Onita Jenkins, appellant's former girlfriend and mother of his two children. Appellant knocked on the door, but Jenkins refused him entry. The two argued, and appellant left the premises. Appellant returned shortly thereafter and asked Jenkins to go to the back of the apartment to a kitchen window to talk. Jenkins agreed to talk but steadfastly refused him entry. After speaking to one another for a moment, Jenkins noticed that appellant had a gun. Jenkins immediately fled from the window, gathered her children and hid in the bathroom, where she called 911. During this time, appellant, after unsuccessfully attempting to fire the weapon, raised it to the window and fired three quick, successive shots through the kitchen window into the apartment. Fortunately, no one was injured by the gunshots.

Appellant was later picked up by the Fayetteville police at his current girlfriend's house. The police arrested him and took him to the Fayetteville City Jail. On the morning of September 24, 1997, Fayetteville Police Detective Timothy Franklin questioned appellant at the Detective Division in the police department. During the interview, Officer Franklin wore his badge, but did not have his gun. At the onset of questioning, Officer Franklin read appellant his Miranda rights, and had appellant complete a "CID" form, a form which the Fayetteville Police Department regularly uses to explain and verify a suspect's Miranda rights. Routinely, the form is read and explained by the officer, who also allows the defendant to read and initial each paragraph to verify the defendant's understanding of his rights. Appellant completed this form during his interrogation.

After Officer Franklin and appellant completed and signed the "CID" form, Officer Franklin completed an information form by gathering information from appellant, including his name, age, social security number, address, and other pertinent data. Officer Franklin then began questioning appellant and, in doing so, began to take notes of the interview. Officer Franklin, however, ceased taking notes when appellant began taking a serious interest in what he was writing. Officer Franklin testified at a suppression hearing prior to trial that it was his practice to cease taking notes at an interrogation when a defendant pays such close attention because his experience had been that the defendant "becomes somewhat reluctant to continue parts of sentences if they feel they may have said something important." Officer Franklin memorialized the interview by recording his report on a micro-cassette which was later transcribed into a typed report.

During the trial, Officer Franklin testified that he questioned appellant about prior criminal convictions he had in Texas, as well as the events which resulted in the current charges being brought against appellant. Officer Franklin testified that appellant denied most of the report of the incident from the day before. Onita Jenkins also testified at the trial regarding the events of September 23, 1997. Additionally, Jenkins testified that subsequent to McClennan's arrest but prior to the trial, appellant attempted to "bribe" her into refusing to testify by promising to pay her $700. Appellant objected to admission of this testimony but the court overruled the objection finding the testimony relevant.

At the conclusion of the trial, the jury returned guilty verdicts on all counts, including each of three counts of terroristic acts brought for each of the three shots fired into the apartment. Appellant moved for a directed verdict at the conclusion of his case and the conclusion of trial on two of the three counts of terroristic acts or, in the alternative, all of the terroristic acts, contending that it was violation of the double jeopardy clause for him to be convicted on four separate offenses for one course of conduct. He appeals the court's denial of that motion.

Standards of Review

In criminal cases, this Court will affirm if there is substantial evidence to support the verdict. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). The Court reviews the evidence in the light most favorable to the appellee. Id. In reviewing the validity of a statement made to the police, we review the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Determining the relevancy of evidence and the probative value of that evidence against the unfair prejudice pursuant to Ark. R. Evid. 403 is within the trial court's discretion which will not be reversed on appeal absent a manifest abuse of that discretion. Brown v. State, 54 Ark.App. 44, 50, 924 S.W.2d 251 (1996) and Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).

Double Jeopardy

Appellant's first point on appeal is whether the terroristic act of shooting into an occupiable structure under Ark.Code Ann. § 5-13-310(a)(2) is a "continuous offense." Appellant contends that Ark.Code Ann. § 5-1-110 should bar his being charged with multiple counts because the shots were part of a single impulse and thus constituted a continuous offense. Appellant contends that these multiple charges violated his Fifth Amendment right to be free from double jeopardy for being charged and tried multiple times for the same crime. In this case, the State charged appellant with three counts of terroristic act under the statute and obtained conviction on all three, one for each of the three shots he fired into the apartment.

The general rule in Arkansas is that a "continuing course of conduct crime" under Ark.Code Ann. § 5-1-110(a)(5) may only be prosecuted under one charge. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994) and Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). A "continuing offense" is one that is a "continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force." Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). The test to determine if a situation involves a continuing offense is "whether the individual acts are prohibited, or the course of action which they constitute; if the former, then each act is punishable separately; if the latter, there can be but one penalty." Id., 261 Ark. at 493, 549 S.W.2d 84, quoting Wharton, Criminal Law, 11th ed. § 34, n. 3. Put another way, "when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." Id. Examples given in Britt and cited in several subsequent cases of continuing offenses include nonsupport [Ark.Code Ann. § 5-26-401], promoting prostitution [Ark..Code Ann. §§ 5-70-104--106], and erecting or maintaining a gate across a public highway [Ark.Code Ann. § 5-71-214].

Appellant contends that a violation of Ark.Code Ann. § 5-13-310 "Terroristic Act" is a continuing-course-of-conduct crime which should limit the charges against him under this statute to one charge for shooting into the apartment three times. The pertinent part of this statute states:

(a) For the purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:

* * *

(2) He shoots with the purpose to cause injury to person or property at an occupiable structure.

Nothing in this statute defines this crime as being a continuous-course-of-conduct crime, or even gives the impression that it was created with such a purpose. One could argue that the word "shoots" includes multiple shots, but it would not be the preferred reading of the statute. There is no question that one shot would be sufficient to constitute the offense. Multiple shots, particularly where multiple persons are present, pose a separate and distinct threat of serious harm for each shot to any individual within their range. Moreover, had appellant fired his weapon and injured or killed three people there is no question that multiple charges would ensue. Each of appellant's shots required a separate...