Shankle v. State
| Decision Date | 30 March 1992 |
| Docket Number | No. CR,CR |
| Citation | 827 S.W.2d 642,309 Ark. 40 |
| Parties | Jack B. SHANKLE, Appellant, v. STATE of Arkansas, Appellee. 91-229. |
| Court | Arkansas Supreme Court |
Charles L. Honey, Prescott, for appellant.
Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.
Appellant raises six points for reversal of his convictions for first-degree murder and two counts of aggravated assault for which he was sentenced to a total of forty-two years imprisonment. None of his points have merit, so we affirm.
Appellant first argues the evidence is insufficient to support his convictions, but we must hold this issue was not preserved below. As we have repeatedly held, in order to argue sufficiency of the evidence on appeal, the appellant must make a directed verdict motion at the end of the state's case and again at the end of trial. A.R.Cr.P. Rule 36.21(b). Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). Here, the record fails to reflect the appellant moved for a directed verdict at the end of the trial. Appellant suggests the court reporter may have in some manner omitted his motion. Even so, the appellant has a duty to provide a complete record from which this court can determine the asserted error. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). If the record failed to reflect what occurred below, appellant could have corrected and had the record modified under Ark.R.App.P. 6(e). Having failed to do so, we are unable to review his claim of insufficiency of evidence.
Although we do not determine appellant's directed verdict issue, it is still necessary to highlight the pertinent facts so we may address appellant's other arguments. To prove its case, the state showed that ill will existed between appellant and his nephew, Mikey Shankle. Apparently, Mikey was resentful towards appellant because appellant tried on various occasions to discipline him. Some of these occasions resulted in an exchange of threats and display of violence. Linda Shankle, Mikey's mother, testified the appellant had threatened to kill Mikey about three months before his death. Another witness, Abigail Kettlewell, related that about two months prior to Mikey's death, she overheard appellant say, "if he could get away with it, he would kill [Mikey] in a minute." Linda Shankle and Richard Shankle, appellant's brother, also testified that, on the Sunday preceding Mikey's death, appellant threatened to kill Mikey.
On the night of his death, Mikey, his brother Matt, and Brad Reeves, a friend, left Matt's house at about 9:30 p.m., and were walking two to three feet off the pavement and on a grassy area in single file alongside Sharp Street. They were on their way to a friend's residence. Mikey was in the rear, and was wearing camouflage clothes. Matt said that Sharp Street crested on a hill behind them where the boys saw the reflection of a vehicle's lights coming their way. He said the hill was about twenty feet away, and from the time he saw the reflection of the lights, it was ten to fifteen seconds when the vehicle hit them. Matt further said that the vehicle had approached faster and faster and then drove onto the grassy area striking them. The boys had just walked past a street light. The state introduced photographs of tire tracks appearing two to three feet from the pavement and on the grassy area where the victims were hit. The damage to appellant's vehicle was near the middle of the vehicle's hood, tending to show the appellant and his vehicle were off the pavement when the boys were struck. Appellant was legally drunk when the incident occurred.
Appellant's second argument challenges the trial court's admitting Linda Shankle's and Abigail Kettlewell's testimony that appellant had threatened Mikey's life two to three months before his death. These threats, appellant suggests, were too remote in time to be relevant. This court has held that threats are admissible as tending to show ill will and motive. Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975); see also Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). And while the court recognized in Lang that the remoteness in time is to be considered when the interval between the former difficulties and the homicide is so great as to indicate that they had their origin in independent causes, it also pointed out that the court has upheld the admissibility of threats made about a year and one-half before the homicide. Lang, 258 Ark. at 505, 527 S.W.2d at 901; see McElroy v. State, 100 Ark. 301, 140 S.W. 8 (1911).
Here, appellant's threats were shown directed at Mikey, commencing three months, and continuing up to four days, before his death. These threats bore on appellant's motive and intent, and the trial court did not abuse its discretion in admitting them into evidence.
Appellant next challenges the trial court's admissibility of the photographs showing tire tracks leaving the pavement of the street into the grassy area where the victims were walking. He claims a proper foundation was not made showing the tracks were made by appellant's vehicle. However, after appellant's objection, the state's witness, Officer Robert Reeder, who investigated the scene of Mikey's death, said that the tire tracks were from appellant's vehicle "because of the location of where his vehicle came out from the grassy area." Reeder further described that he saw radiator fluid at the end of the skid marks made by appellant's vehicle, and observed that appellant's vehicle was leaking radiator fluid. Reeder finally related that appellant's truck was missing its right front lens cover, and the officers found a lens retainer and plastic cover close to the track marks. Based upon these facts, the trial court ruled the photographs of the tracks taken at the scene were admissible, and on review, we hold the court did not abuse its discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). The weight of the evidence and the credibility of a witness are matters for the jury to resolve. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989).
Appellant's fourth argument questions the trial court's allowing Officer Samuel White to testify that, when appellant was administered field sobriety tests at the scene of the incident, appellant became belligerent and cursed the officer. Appellant contends the prosecutor learned at least two days before trial as to how White would testify, and, under A.C.Cr.P. Rule 17.1 (subject to Rule 19.4), the state should have promptly disclosed the substance of any oral statements appellant had made to Officer White. He says he did not learn of White's testimony until the day of trial. Officer White testified as follows:
After we got to the rear of the vehicle, [appellant] made the statement, All the while I was advising him of the field sobriety tests.
* * * * * *
No, I didn't see [appellant] traumatized. He was arrogant about everything. He was cursing, mostly directing everything at me. Actually, he was cussing my family heritage.
Appellant concedes that the officer's testimony was the same evidence as was contained in a video tape taken of appellant by the police prior to appellant's being administered a breathalyzer test. In other words, White's testimony was not a surprise since it was duplicative of what appeared on the tape. However, appellant argues, the trial court had previously excluded the tape from evidence and therefore White's testimony should likewise be excluded, especially since it had not been disclosed.
The record is unclear regarding why the court excluded the video tape, but the trial court specifically found at trial that statements made by the appellant immediately after the alleged crime were admissible. It further ruled either White's testimony would be admissible or the video tape would be allowed into evidence in place of White's testimony. In so ruling, the trial judge offered appellant a continuance to the following Monday, a three-day delay, in order to defend against the evidence. Appellant declined.
Although the trial was nearing its end when the trial court's ruling was made on this point, appellant fails to show how he had otherwise been prejudiced. Under A.R.Cr.P. Rule 19.2, the prosecutor had a continuing duty to disclose information previously requested by the appellant and such disclosure undoubtedly would have included the oral statements Officer White attributed to appellant. However, Rule 19.7(a) leaves the...
To continue reading
Request your trial
-
Kinkead v. Union Nat. Bank
...227 Ark. 799, 302 S.W.2d 78 (1957). The burden of showing that a privilege applies is upon the party asserting it. Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992). At trial, Union's former attorney, Mr. Duke, acknowledged that the criminal referral form was discussed at meetings he hel......
-
Schipp v. General Motors Corp.
...is upon the party asserting it." Kinkead v. Union Nat'l Bank, 51 Ark.App. 4, 11, 907 S.W.2d 154, 158 (1995) (citing Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992)). Thus, the burden is on Kennedy to show that her statement is privileged. Second, "[t]he purpose of the attorney-client p......
-
Meadows v. State
...it is the obligation of the appellant to present this court with a complete record for purposes of appeal. See, e.g., Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992); Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). We observe that even if the arson instruction had not been given,......
-
Hodge v. State
...was no abuse of discretion in that the statement was relevant to the elements of premeditation and deliberation, see Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992), and cites a case in which a threat a year and a half before the event was held admissible. Lang v. State, 258 Ark. 504, ......
-
Privilege
...time that he was at the police station and was also aware that third parties were present when he made the statement. Shankle v. State , 827 S.W.2d 642, 309 Ark. 40 (1992). In a medical malpractice case, hospital employees and doctors were considered as “clients” of the attorney who represe......
-
Privilege
...time that he was at the police station and was also aware that third parties were present when he made the statement. Shankle v. State , 827 S.W.2d 642, 309 Ark. 40 (1992). In a medical malpractice case, hospital employees and doctors were considered as “clients” of the §9.501 Is It Admissi......
-
Privilege
...time that he was at the police station and was also aware that third parties were present when he made the statement. Shankle v. State , 827 S.W.2d 642, 309 Ark. 40 (1992). In a medical malpractice case, hospital employees and doctors were considered as “clients” of the attorney who represe......
-
Privilege
...time that he was at the police station and was also aware that third parties were present when he made the statement. Shankle v. State , 827 S.W.2d 642, 309 Ark. 40 (1992). In a medical malpractice case, hospital employees and doctors were considered as “clients” of the attorney who represe......