Price v. State

• Decision Date: 21 February 2002
• Docket Number: No. CR 01-703.,CR 01-703.
• Citation: 66 S.W.3d 653,347 Ark. 708
• Parties: Leslie PRICE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

66 S.W.3d 653

347 Ark. 708

Leslie PRICE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 01-703.

Supreme Court of Arkansas.

February 21, 2002.

Etoch & Halbert Law Firm, by: Louis A. Etoch, Helena, for appellant.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

Appellant Leslie Price appeals his judgment of conviction for second-degree murder and felon in possession of a firearm (felon-firearm). He was sentenced to thirty years on the former offense and twenty-five years on the latter, with the two sentences to run concurrently. He raises two points on appeal: (1) the circuit court erred in not directing a verdict in his favor on the second-degree murder charge due to insufficient evidence; and (2) the circuit court erred in not granting his motion for a new trial, because of his trial counsel's conflict of interest and ineffective assistance of counsel. We affirm the judgment of conviction.

On the evening of October 22, 1999, Price, age 43, was working at the Onyx Club in Hot Springs. The club was owned and operated by Price's wife and his mother-in-law. Price was regarded as the manager of the club. His job was to control the crowd both at the door and inside the club. Patrons of the club were required to be twenty-five years of age, and part of Price's job was to ensure that people entering the club were old enough.

On the evening in question, a large crowd of about eighty people was present in the club. Price was working at the door, checking the patrons for identification, and making sure that all guests signed the guest book as they entered. Fred Sykes, the victim in this case, arrived at the club at about midnight with his mother, Margie Walker, and his girlfriend of six months, Julia Sellers. Sellers' mother, Janice Clark, was also present at the club. Sellers was pregnant with Sykes's child, and the group was celebrating this news. Before coming to the club, Sykes had been drinking gin and cranberry juice.

What happened next was disputed at trial. According to Sellers, when Sykes, Walker, and she arrived at the club, she remained outside for some time talking to friends. She testified that Sykes and one of his friends entered the club despite the fact that Sykes was too young. She also testified that eventually she entered the club as well. Several minutes later, she saw Price forcing Sykes to leave the club. She testified that this was when the altercation began that led to Sykes's being shot.

According to Sellers, after Price asked Sykes to leave, Sykes and she left the club. While they were standing on the sidewalk in front of the club, Margie Walker came out of the club. She tripped on a curb and was lying down with one leg in the street, when Sellers walked over to help her up. At this point, according to Sellers, Price came out of the club with a gun in his hand and walked rapidly toward Sykes. Seeing this, Sellers and her mother approached the two men, and Sellers stepped between them. The next thing that happened, according to Sellers, was Price grabbed Sykes by his jacket collar and pointed the gun at his face as the two men stared at each other. According to Sellers, "[H]e stared at [Sykes] and then he looked him straight in the face and then he just shot him."

Price testified to a different chain of events, beginning at the time when Sykes arrived at the club. According to Price, when Sykes arrived, he remained outside and asked Price to go inside and find his mother. Price testified that this encounter was relatively friendly and that he was about to do as Sykes asked, but before he got a chance to find Walker, she appeared in the doorway. Price testified that at some point later, Sykes got into the club unbeknownst to Price, who was not supposed to have let him enter because he was not old enough. According to Price, Sykes then left the club.

Price testified that a short while later, Sykes approached him at the front door and asked if he could go inside and get Sellers. Earlier, Price had told him that he did not think Sellers was inside, but at that moment, she appeared at the door. Sykes and Sellers then had an argument, and Price testified that Sykes slapped her "clean out the door." According to Price's testimony, Sykes approached him just inside the club and confronted him angrily about Price's earlier statement that Sellers was not inside. Price ignored him and lit a cigarette, which Sykes slapped out of his mouth. At this point, Margie Walker came and took him outside onto the sidewalk.

Once Sykes was outside, according to Price, there was a disturbance in the area immediately in front of the club. Price could hear the commotion, and someone told him that Margie Walker was lying on her back on the sidewalk. He went outside to investigate. Before he got out of the club's front door, one of Price's friends handed him a gun. Price testified that he took the gun, because he did not know what he would be facing once outside.

When he got outside, Price testified that he saw Walker lying on the ground, and Sellers and her mother were trying to help her to her feet. Sykes was acting erratically and approached Price, apparently still angry that Price had told him that Sellers was not inside the club. Price asked Sykes what had happened to Walker, and Sykes began cursing and screaming at Price. According to Price, Sykes took off his jacket and was grabbing for Price's shirt. Price then grabbed Sykes's left arm. Price felt something hit his finger, and he raised the gun. The gun fired accidentally, and the recoil knocked the gun out of his hand. The bullet hit Sykes. Price testified that he never intended to kill Sykes, and that the shooting was a result of his bad judgment.

The facts surrounding the immediate aftermath of the shooting are not as sharply contested as those leading up to the shooting. After Sykes was shot, Sellers, her mother, and Margie Walker assisted him down the street, as Sykes apparently could walk a short distance. The four of them spotted a Hot Springs police patrol cruiser that had pulled a car over. They approached the policeman, who called an ambulance. Sykes was taken by ambulance to National Park Hospital, where he died from the gunshot wound.

Dr. Frank Peretti was the medical examiner in this case and testified that the bullet entered Sykes's left cheek, exited on the left side of the neck, and then reentered Sykes's body through his left shoulder. The bullet passed through Sykes's left lung and eventually lodged in the soft tissues near his spine. The cause of death was the gunshot wound to the head and chest. It was later determined that Price had broken two bones in his hand, and his hand was placed in a cast. Price was taken to the Hot Springs police station, where he gave a statement. The gun with which Sykes was shot was never found.

On December 6, 1999, Price was charged with second-degree murder and felon-firearm. He was also charged as a habitual offender. Price hired Steve Oliver as his defense attorney. In the year 2000, Oliver ran for prosecuting attorney for the judicial circuit that is composed solely of Garland County, which includes Hot Springs. Oliver ran a contested race in both the primary election in May 2000 and the general election in November 2000. The general election was held on November 7, 2000. He won both races and was sworn in as prosecuting attorney on January 1, 2001.

Oliver filed several pretrial motions on Price's behalf and obtained several continuances of the trial. On September 11, 2000, he filed a motion for a severance of Price's two charged offenses. On September 18, 2000, he filed a motion for continuance. The trial was set to begin the next day, September 19, 2000, and the circuit court held a hearing on the motion. At the motion hearing, Oliver and the deputy prosecuting attorney, Dan Turner, explained to the judge that the state had agreed not to oppose the motion for continuance in return for Oliver's withdrawing the motion to sever. The court agreed and granted the continuance, and the motion to sever was withdrawn.

From November 20 through the 22, 2000, the two charges against Price were tried before a jury. At the trial, the prosecutor presented the testimony of multiple witnesses, including Julia Sellers. The defense presented the testimony of several witnesses including Price's mother and Price himself. The jury was instructed on the two charges and returned a guilty verdict.

During the sentencing phase of the trial, the prosecutor introduced proof of three of Price's four prior convictions: a 1979 conviction for battery and two convictions for felon-firearm, one in 1983 and one in 1989. The fourth offense was admitted during the guilt phase of the trial. Price was sentenced to thirty years on second-degree murder and twenty-five years on felon-firearm, with the sentences to run concurrently.

After Price was convicted and sentenced, Oliver immediately withdrew as counsel in the case. Price hired a new attorney, Louis Etoch. Etoch timely filed a motion for a new trial based on Oliver's alleged conflict of interest and ineffective assistance of counsel at trial. At the ensuing motion hearing, Oliver testified that he spent a great deal of time and money campaigning for the position of prosecutor and that he ran on a platform of aggressive prosecution. He testified that when he made the decision to file as a candidate for the office, he informed Price of his decision. Oliver also testified that he continued to represent Price, but that Price did not seek independent counsel to advise him on any possible conflict of interest. Oliver further testified that if he had persisted in the motion to sever the charges of second-degree murder and the felon-firearm charge, the motion would have been granted. The circuit court denied the motion for a new trial.

I. Sufficiency of the Evidence

Price's first argument on appeal is that the...