Shipley v. State, CA
| Decision Date | 28 September 1988 |
| Docket Number | No. CA,CA |
| Citation | 757 S.W.2d 178,25 Ark.App. 262 |
| Parties | Jeffery SHIPLEY, a/k/a Sterling Timothy Mullins, Tim Mullins or Tim Shipley, Appellant, v. STATE of Arkansas, Appellee. CR 88-29. |
| Court | Arkansas Court of Appeals |
M. Edward Morgan, Clinton, for appellant.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
This appeal comes from Searcy County Circuit Court. Appellant, Sterling Timothy Mullins, appeals his conviction of murder in the second degree and the sentence imposed therefor. We find error and reverse and remand.
A felony information was filed March 23, 1987, charging appellant with murder in the first degree, a violation of Arkansas Code Annotated § 5-10-102 (Supp.1987) (formerly Ark.Stat.Ann. § 41-1502 (Supp.1985)). Appellant was found guilty on the reduced charge of murder in the second degree in violation of Arkansas Code Annotated § 5-10-103 (1987) (formerly Ark.Stat.Ann. § 41-1503 (Repl.1977)) and was sentenced to ten years imprisonment and a fine of $5,000 plus costs. From this conviction and fine, comes this appeal.
For reversal, appellant asserts the following: (1) The trial court erred in failing to direct a verdict for appellant; (2) the trial court erred in allowing Dr. Fahmy A. Malak to testify as to the blood type of Thomas Lafoon; and (3) the trial court erred in not granting a mistrial after Officer Cornett alluded to offering a polygraph examination to the defendant.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Nelke v. State, 19 Ark.App. 292, 720 S.W.2d 719 (1986). Although we find reversible error on other grounds, we will address appellant's challenge to the sufficiency of the evidence prior to considering any alleged trial error as required by Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The court must consider all evidence, including any which may have been inadmissible, in the light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Phillips v. State, 17 Ark.App. 86, 703 S.W.2d 471 (1986).
The evidence reflects that on December 30, 1986, a fire destroyed Thomas Lafoon's residence in a rural area north of Marshall, Arkansas. The skeletal remains of Mr. Lafoon were found among the debris. While investigators were at the scene on that day, appellant approached the victim's homesite on foot then turned and walked in the opposite direction. Keith Cornett, an investigator for the Arkansas State Police, saw appellant and shouted for him to come back. Mr. Cornett's testimony reveals that appellant was nervous, his stomach was jerking, and his coat had what appeared to be blood stains on it.
Al Castro, an investigator for the Searcy County Sheriff's Office walked up at that time and after asking questions determined that appellant knew the victim and helped him unload and move a couch into his home the night before.
At that time, appellant was taken to the sheriff's office for questioning. Appellant then gave his first statement identifying himself and signing his rights form with the alias name of Jeffery Shipley. During this questioning, appellant related that on the evening of December 28, 1986, the victim came to his house asking for help unloading a couch. Appellant had company but agreed to help the victim the following night. Appellant asserted that on December 29, 1986, he helped his brother cut wood then went to the victim's home between 5:30 p.m. and 6:00 p.m. to help with the couch. Appellant alleged that the victim was asleep and drunk when he arrived. Appellant said they drank vodka and then he left the victim asleep on the couch and went home at 8:00 p.m. or 9:00 p.m. and also went to sleep. He alleges he was told of the fire on December 30, 1986, at about 2:30 p.m.
During the first statement, appellant did not know how he got blood on his coat. He explained that he got the cuts on his hand and the scratch over his eye while cutting wood but could offer no explanation for the other injuries and bruises on other parts of his body.
Appellant was interviewed again on the following day, December 31, 1986, and offered a new statement explaining the events on December 29, 1986. He said that he laid his jacket over a chair inside the victim's home while they moved the couch. While bringing the sofa through the patio sliding door, the victim tripped and fell through the door knocking the glass inside the house. The victim allegedly received several small cuts which could have gotten on appellant's jacket in the fall.
A third interview was scheduled for appellant to take a polygraph test; however, he refused to take the test when the officer informed appellant that he knew his real name was Sterling T. Mullins rather than Jeffery Shipley.
R.C. Rea with the Arkansas Forestry Commission testified that he arrived at the scene of the fire at approximately 1:30 p.m. on December 30, 1986, and estimated that the fire had been burning at least twelve hours based upon the weather and breeze conditions.
Marlee Stancell, who lives near the victim's home, testified that he heard a gunshot between 8:00 p.m. and 9:00 p.m. on December 29, 1986, followed by an explosion at 2:00 a.m. on December 30, 1986. Mr. Stancell stated that the shot sounded like it came from a high-powered rifle.
Expert testimony was presented that the victim died as a result of a .22 caliber bullet wound to the left side of his head. Also there was evidence that the victim was right-handed and it would have been virtually impossible for him to commit suicide considering the location of the wound and path of the bullet. Five firearms were found in the remains, including a .22 caliber gun with nine spent cartridges. Other physical evidence at the scene indicated that the glass from the patio door was outside the house rather than inside. The evidence revealed that the victim had blood type O and appellant blood type A. The blood on appellant's jacket and left boot was blood type O. On his right boot, blood type A was found.
The fact that appellant used an alias evidenced a consciousness of guilt. Kidd v. State, 24 Ark.App. 55, 748 S.W.2d 38 (1988). Also, appellant related different versions of the events prior to the victim's death and for the blood stains on his jacket. The Arkansas Supreme Court has held that a defendant's false, improbable and contradictory statements explaining suspicious circumstances may be considered by the jury as proof of guilt. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).
Appellant argues that the facts of this case are...
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