Ranmaker v. State

• Decision Date: 14 June 2001
• Citation: 345 Ark. 225,46 S.W.3d 519
• Court: Arkansas Supreme Court

345 Ark. 225

46 S.W.3d 519

Michael RAMAKER, Appellant v STATE of Arkansas, Appellee

CR 00-449

SUPREME COURT OF ARKANSAS

June 14, 2001, Decided

Morris & Morris P.A., by: Tim R. Morris, for appellant.

Mark Pryor, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

W.H. "DUB" ARNOLD, Chief Justice. Appellant, Michael Ramaker, was convicted of first-degree murder and sentenced to thirty-five years' imprisonment in the Arkansas Department of Correction for the shooting death of his girlfriend, Ann Swee. We affirm his conviction and sentence.

On August 1, 1998, appellant, after allegedly checking a 12-gauge shotgun to ensure there was no ammunition, pointed the shotgun at Ms. Swee from a distance of eighteen to twenty-four inches and pulled the trigger. The gun discharged, and Ms. Swee died almost instantly from a wound to the left side of her face and head. Appellant was charged with capital murder. His defense at trial was that the shotgun had a defect that kept him from establishing that the gun was loaded. Many pretrial motions were made, including a motion to exclude photographs of the victim.

During the trial, the State presented an Arkansas Crime Laboratory expert who tested the weapon eight times and found no malfunction. Appellant's expert stated that he tried the weapon 150 times, and the weapon had malfunctioned 10 percent of the time. He stated that he saw a shell spring from the magazine onto a carrier assembly four times and that someone could load a round without one knowing it. Prior to trial, the Benton County Sheriff's Department had cleaned the weapon.

During the trial, appellant's expert witness demonstrated the operation of the weapon; it malfunctioned twice. The first time was exactly like he had seen during his tests. The second time was a new malfunction. The gun's bolt jammed and could not be dislodged. During a recess, the trial judge ordered the expert to unjam the gun while in the presence of a prosecutor's assistant. The gun was unjammed, although a slide release button was broken in the process. The trial judge informed the jury of this process and event. Appellant strenuously objected to anything that entailed an unjamming of the gun. The evidence was submitted to the jury for its use in deliberations.

During trial, appellant made a motion for directed verdict. He claimed that the State had failed to establish the charges against him. He also objected to gruesome photographs of the victim's face. He further asked that his request for a polygraph be admitted before the jury, which the State adamantly opposed, and the trial court denied. Appellant also objected to the weapon's introduction as evidence due to the fact that it had been cleaned.

Appellant was convicted. It is from that conviction that he now appeals. He asserts the following points for reversal:

The trial court abused its discretion in allowing the 12-gauge shotgun to be delivered to the jury as evidence;

The trial court erred when it allowed the prosecution to introduce a redacted statement that excluded references to the defendant's offer of taking a polygraph test because it substantially prejudiced the defense;

The trial court abused its discretion in allowing prejudicial, inflammatory, and cumulative photographs of the victim to be admitted as evidence;

The trial court erred when it failed to grant the motion for directed verdict because the evidence failed to support a conviction for first-degree murder.

We affirm.

I. Sufficiency of Evidence

Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before other points are raised. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001); Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra.

Appellant was convicted of murder in the first degree. On appeal, he challenges the sufficiency of the evidence to support his conviction; however, he was charged with capital murder and, at trial, when making his motions for directed verdict, he only moved as to capital murder and not as to the lesser-included offense of murder in the first degree, for which he was ultimately convicted. This Court has held that in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants are required to address the lesser-included offenses, either by name or by apprising trial courts of the elements of the lesser-included offenses, in their motions for directed verdict. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996). As appellant failed to move for a directed verdict on the lesser-included offense of first-degree murder, he is procedurally barred from challenging the sufficiency of the evidence on appeal.

II. Admission of Shotgun into Evidence

Appellant does not dispute that he caused Ms. Swee's death; he contends, rather, that the shooting was accidental because he believed that the shotgun was unloaded. Consequently, the primary factual issue at trial was whether a malfunction caused the shotgun to be ready to fire, despite allegedly appearing unloaded to the appellant. On appeal, the appellant raises several arguments involving the shotgun. He argues that the trial court erred in admitting the gun after hearing testimony that the police had cleaned it prior to the last of a series of test firings, by ordering the weapon to be repaired after it jammed during the testimony of the appellant's ballistics expert, and in commenting on the weight of the shotgun as evidence.

A. Alleged Police Tampering

Appellant first argues that the trial court erred in admitting the gun as evidence because there was direct evidence of police tampering. During the testimony of Investigator Jim Yarber, appellant made a chain-of-custody objection to the admission of the shotgun. He alleged that the police cleaned the gun prior to the last of a series of test firings and, as a result, that it was no longer the same weapon that he used in the shooting. The trial court did not rule on the objection but allowed Investigator Yarber to testify about the circumstances of the cleaning. Yarber stated that the gun barrel was removed to access the firing pin and that the gun was cleaned. He also testified that the gun was reassembled after the cleaning, that no parts were replaced or altered, and that no one "manipulated the gun in any way." Appellant's counsel then conducted a voir dire examination, and Yarber testified that no one videotaped the cleaning of the gun. At the conclusion of the voir dire examination, the appellant stated that he had "no objection" to the admission of the shotgun. The gun was then admitted into evidence.

On appeal, appellant claims that the trial court erred in admitting the gun because the cleaning removed soot and other dirt that caused the malfunction that he alleges occurred on the night of the shooting and, consequently, that that malfunction could no longer be demonstrated for the jury. The State asserts that appellant's argument on this issue is procedurally barred as he stated that he no longer had an objection to the admission of the gun into evidence after the circumstances of the cleaning were developed through Investigator Yarber's testimony. We agree with the State.

We have held that when an objection is withdrawn, it is as though the objection was never made. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). The appellate court, moreover, will not consider arguments that are raised for the first time on appeal. See Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Therefore, although he had made the chain-of-custody objection, once he stated that he then had "no objection" to the evidence, it was as though he had never made the objection and his argument on this point is, therefore, barred on appeal.

B. Trial Court's Order to Repair

The appellant next argues that the court abused its discretion when it ordered experts from both sides to repair the gun after it jammed during the State's cross-examination of the appellant's expert. Before the case was submitted to the jury, the prosecutor noted that the malfunction that caused the shotgun to jam was not the same malfunction that the appellant claimed occurred on the night of the shooting, and he requested that the trial court allow the gun to be restored to "working order" to enable the jury to view the gun in substantially the same condition as it existed at the time of the crime. The trial court ordered the repair over the appellant's objection. The gun was operable after the repair, but the slide release was broken. Appellant now argues that the shotgun, in its jammed condition, proved his assertion that it malfunctioned on the night of the shooting and, thus, the repair prejudiced him by removing "direct exculpatory evidence" from the jury. He also intimates that, by ordering the repair, the trial court exhibited a bias in favor of the State. We disagree.

Arguably, the trial court may have abused its discretion by ordering a repair of the gun, when the appellant's very defense was that the gun malfunctioned on the night the victim was shot. Still, the...