Orsini v. State

• Decision Date: 13 February 1984
• Docket Number: No. CR,CR
• Citation: 281 Ark. 348,665 S.W.2d 245
• Parties: Mary Lee ORSINI, Appellant, v. STATE of Arkansas, Appellee. 83-66.
• Court: Arkansas Supreme Court

Page 245

665 S.W.2d 245

281 Ark. 348

Mary Lee ORSINI, Appellant, v. STATE of Arkansas, Appellee.

No. CR 83-66.

Supreme Court of Arkansas.

Feb. 13, 1984.

Rehearing Denied March 19, 1984.

Tom Donovan, North Little Rock, for appellant.

Steve Clark, Atty. Gen. by Alice Ann Burns, Deputy Atty. Gen., Little Rock, for appellee.

ADKISSON, Chief Justice.

Appellant, Mary Lee Orsini, and two accomplices were jointly charged with capital felony murder arising from the death of Mrs. Alice McArthur. In a separate trial in Pulaski County Circuit Court, appellant was convicted and sentenced to life imprisonment without parole. The State had previously waived the death penalty. On appeal we affirm.

I.

Appellant argues that she was convicted on the uncorroborated testimony of an accomplice and that the evidence was insufficient to sustain her conviction. We disagree.

On July 2, 1982, in the late afternoon, the victim was found shot to death in her western Little Rock home. That afternoon at about 4:20 p.m., a neighbor saw a car with no license plate and with a homemade delivery sign in the window pull into the victim's driveway. She observed a black man, carrying flowers, emerge from the car and hand the flowers to the victim. The black man was Larry McClendon, one of the accomplices. She then saw the driver of the car, a white male, get out of the car and walk toward the door. The white male was Eugene "Yankee" Hall, the other accomplice. Later she saw the two men drive away. At trial she identified McClendon's car as the one she had seen. Shortly thereafter the victim's husband arrived home and, being unable to locate his wife, called the police. During a search of the house, the victim's body was found in an upstairs closet. At the victim's feet was a flower arrangement. The crime scene investigation revealed three bullet holes; one in the hallway, one in the closet where the body was found, and one in the body of the victim.

The principal witness for the State was Eugene "Yankee" Hall. His testimony about his and appellant's participation in the murder was corroborated by the testimony of various witnesses and physical evidence found at the scene of the bombing and the scene of the shooting. Hall testified that he had met appellant in the Spring of 1982 and had spent several nights at her house. During the following weeks the two of them conspired to kill Alice McArthur. In May of 1982 he and appellant purchased an explosive contained in a shampoo bottle, made a bomb, and placed it in the victim's car where it exploded without seriously injuring her. Parts of a shampoo bottle containing the high explosive Torvex were recovered from the bomb scene at the McArthur home. Two witnesses identified appellant as the woman who accompanied Hall when he bought the explosive. They identified appellant's automobile as the vehicle in which the pair was traveling. Evidence introduced at trial reflected that a telephone call made to the seller of the explosive from a bait shop on the day of the purchase was billed to appellant's telephone number. Another witness testified that appellant had told her several days before the bombing incident that a bombing would occur.

Hall stated that, after the bombing failed to kill Mrs. McArthur, he agreed with appellant to a contract murder of the victim for $25,000 to be paid by the victim's husband, the trigger to be pulled by Larry McClendon. Appellant gave him $325 for expenses. Hall testified that appellant agreed to obtain the murder weapon. Circumstantial evidence corroborated Hall's testimony that the murder weapon was obtained by appellant. A ballistics expert testified that the three bullets were fired from a short barreled revolver and were a unique Federal type bullet manufactured between 1956 and 1975. Dr. Wulz, a witness for appellant, stated that he and appellant had been engaged in a continuing romantic relationship for several years and that he had owned an eleven or twelve year old .38 caliber revolver. He further testified that he discovered the pistol was missing about a week prior to the murder. The ballistics expert testified that the three bullets retrieved from the crime scene were the same type as those in a box of shells which Wulz had kept at home and had delivered to the prosecutor.

Hall further testified that appellant had devised the scheme for him and Larry McClendon to pose as a florist delivery service and that appellant had made the florist delivery sign. Hall testified that on the day of the murder he and McClendon went to Philips Wrecker Service in North Little Rock to get the florist delivery sign out of a car that he had been driving. An employee of the wrecker service corroborated this fact. Hall testified that on the day of the murder he purchased a flower arrangement and removed the license plate from McClendon's car before putting the floral delivery sign in the car window. An employee of Leroy's florist at Cantrell and Kavanaugh in Little Rock testified that she prepared the flower arrangement found at the murder scene. Before Hall picked up the flower arrangement, he telephoned appellant, and appellant telephoned the victim's residence to make sure she was home. Evidence was introduced to corroborate Hall's testimony that appellant telephoned the victim the afternoon of the murder. The record reflects that a tracing device, or trap, along with a microcassette tape recorder, had been placed on the McArthur telephone. A transcription of the telephone tape recovered from the home the day of the murder established that a telephone call made to the victim at 1:59 p.m. had been made from appellant's residence. The caller asked for "Mama." Two witnesses identified the voice of the caller as the voice of appellant. This corroborated Hall's testimony that appellant telephoned the victim the afternoon of the murder to determine if she was home. Soon after the telephone call to appellant's home, appellant drove by Hall and McClendon on her way to a pre-arranged appointment with her attorney, Bill McArthur, the victim's husband. Two witnesses from the McArthur law firm testified appellant had made an appointment for 4:00 that afternoon. As she passed Hall and McClendon, she got a go ahead sign from Hall. After the murder, Hall threw the gun and florist sign in the Arkansas River. He then telephoned appellant who told him she had been unable to get the payoff money that day.

Within a few days after the murder, appellant told Larry Burge, an acquaintance, that she had received an anonymous telephone tip that Larry McClendon had killed Alice McArthur. At appellant's request, Burge relayed this information anonymously to the sheriff, who verified receiving it. The next day appellant again contacted Burge, telling him she had received more information about the murder and had made notes on this information. The notes were written down on yellow pieces of paper. At appellant's request, Burge agreed to pose as an anonymous caller and relate to her the information she had written down. Burge made the call, naming McClendon as the man who fired the gun and stating that McClendon had been seen with a white man earlier in the day. Appellant tape recorded this message and, on the pretext of having received the call from an anonymous source, took the tape to the sheriff. At trial Burge identified the yellow pages as the notes written in appellant's handwriting and given to him by her for the purpose of making his call. Since the staged anonymous call, based on notes prepared by appellant, was information only a person involved in the murder would know, this evidence corroborated Hall's testimony that appellant conspired with him to commit murder.

The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the crime. Ark.Stat.Ann. § 43-2116 (Repl.1977). Henderson v. State, 279 Ark. 435, 440-441, 652 S.W.2d 16 (1983). It is unnecessary that the evidence be sufficient to sustain the conviction as long as, after elimination of the accomplice's testimony, the evidence tends to connect the accused to the crime. Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982); King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). Where the testimony of an accomplice is corroborated as to particular material facts, the jury can infer the accomplice spoke the truth as to all. Olles & Anderson v. State, 260 Ark. 571, 576, 542 S.W.2d 755 (1976). On appeal we view the evidence in the light most favorable to the non-moving party. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). We conclude the evidence was sufficient to corroborate the testimony of Hall and to support appellant's conviction and uphold the trial court's denial of appellant's motion for directed verdict. See Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

II.

Appellant argues for reversal that the trial court erred in: (A) rulings related to the selection of the jury, (B) permitting piecemeal pretrial discovery, (C) failure to disqualify the prosecuting attorney, (D) denial of a continuance of the trial, (E) failure to set bail, and (F) denial of a motion for a new trial.

A.

Appellant argues that she was denied a fair trial because her jury was prejudiced by extensive pretrial publicity, and the trial court, therefore, improperly denied her motions related to jury selection: a motion to dismiss and another for change of venue.

Generally, whether to grant a change of venue lies within the trial court's discretion. It must determine if the defendant can receive a fair trial by an impartial jury in the county in which he or she is being tried. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). The voir dire of a jury provides an adequate safeguard against pretrial publicity. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). We uphold the trial court's denial of appellant's motions...