Smith v. State

• Decision Date: 02 October 1997
• Docket Number: No. CR,CR
• Citation: 330 Ark. 50,953 S.W.2d 870
• Parties: Anthony David SMITH, Appellant, v. STATE of Arkansas, Appellee, 96-1167.
• Court: Arkansas Supreme Court

Page 870

953 S.W.2d 870

330 Ark. 50

Anthony David SMITH, Appellant, v. STATE of Arkansas, Appellee,

No. CR 96-1167.

Supreme Court of Arkansas.

Oct. 2, 1997.

Donald J. Adams, Harrison, Griffin Smith, Little Rock, Roy E. Danuser, Mountain Home, for Appellant.

Winston Bryant, Attorney General, David R. Raupp, Senior Assistant Attorney General, J. Brent Standridge, Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant Anthony David Smith appeals the judgment of the Marion County Circuit Court convicting him of the capital murder of his wife Christine Smith and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). Appellant raises two points for reversal, namely that the trial court erred in failing to grant his motion for mistrial due to the prosecutor's comments during opening statement on his right to remain silent and in excluding the testimony of one of his witnesses. We find no error and affirm.

In the early morning hours of October 6, 1994, officers and medical personnel responded to a call from the Smith residence concerning a possible drowning. At the scene, they found thirty-two-year-old Christine Smith wet and lying on her back on a wooden deck next to the family's swimming pool. She had blood coming from the back of her head and out of her nose and mouth. Her body was sent to the Arkansas State Medical Examiner's Office for an autopsy, where it was determined that Mrs. Smith had died as the result of both a contact gunshot wound to the back of her head and strangulation. Appellant was subsequently arrested and convicted for the capital murder of his wife and sentenced to life imprisonment.

I. Prosecutor's Remarks on Appellant's Right to Remain Silent

For his first point for reversal, Appellant argues that the trial court erred in failing to declare a mistrial due to the following remarks made by the prosecutor in opening statement:

The presentation of this case which you're going to hear about are the events, primarily, of the early morning of the 6th day of October, 1994. And the thing that you have to realize is that, from the start of this, Mr. Smith was the only person alive who was present. He's the only person alive who was present on the scene. On that morning, he got an opportunity then and he will get an opportunity in this courtroom, through the tapes and the other evidence we'll introduce, to present what he claims happened.

The prosecutor then went on to recite what he expected the State's evidence would prove during the course of the trial, including the substance of a taped interview that Appellant gave to police that same day. At the conclusion of the prosecutor's opening statement, Appellant moved for a mistrial on the ground that the remarks amounted to an improper reference to his right to remain silent. The trial judge denied the motion because he did not believe the reference to be significant.

On appeal, Appellant contends that the prosecutor's remarks violated his rights under the Fifth Amendment to the United States Constitution to remain silent and not be compelled to be a witness against himself. Specifically, Appellant argues that the remarks emphasized the fact that he was the only person present at the scene and intimated that only his personal testimony could rebut the evidence against him. We do not reach the merits of this argument because Appellant failed to make a contemporaneous objection below.

In order to be timely, an objection must be contemporaneous, or nearly so, with the alleged error. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 757, 112 L.Ed.2d 777 (1991). Where the allegation of error concerns a statement made by the prosecutor during argument, the defendant must make an immediate objection to the statement at issue in order to preserve the allegation for appeal. Wallace v. State, 53 Ark.App. 199, 920 S.W.2d 864 (1996) (citing Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987)). In Butler, this court specifically rejected the Eighth Circuit Court of Appeals' holding in Lange v. Schultz, 627 F.2d 122 (8th Cir.1980), that counsel may reserve his or her objection to statements made in closing argument until the end of the argument, before the case is submitted to the jury. This court held:

We decline to follow the Eighth Circuit's position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.

Butler Mfg. Co., 292 Ark. 198, 202, 729 S.W.2d 142, 144. See also Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1979). Such reasoning is equally applicable to alleged errors made in opening statement.

Similarly, this court has repeatedly held that motions for mistrial must be made at the first opportunity. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). In Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), this court held that the appellant's motion for mistrial based upon improper comments made by the prosecutor during opening statement was untimely because it was not made until after the conclusion of appellant's opening statement. This court reasoned that it was proper to deny a motion for a mistrial when the request was not made at the first opportunity, even though the motion had been preceded by two defense objections sustained by the trial court. Id. (citing Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986)).

Here, the particular comments were made by the prosecutor in the middle of his opening statement. Appellant did not object or move for a mistrial at the time the statements were made; instead, he waited until the prosecutor had finished his entire opening statement before bringing the alleged error to the trial court's attention through his motion for mistrial. Accordingly, it was not error for the trial court to deny the motion as it was untimely made.

II. Exclusion of Expert Testimony

For his second point for reversal, Appellant argues that the trial court erred in excluding the testimony of Carl Rainey as an expert on the subject of firearms. Appellant contends that Rainey, who had years of experience in hunting and using firearms, should have been permitted to testify about experiments he conducted involving the firing of .22 caliber bullets into various objects to check for bullet fragmentation. Appellant contends that he was prejudiced by the exclusion of this testimony as it was relevant to counter the State's evidence that bullet fragments found in the victim's skull were consistent with .22 caliber bullets found in Appellant's home. The State argues that Rainey was not an expert in firearms and that his experiments were not conducted in the same manner and under circumstances substantially similar to those surrounding the homicide. The evidence presented by the State Medical Examiner's Office was that the gunshot wound to Mrs. Smith's head was a contact wound.

The trial court heard argument from counsel as to Rainey's expected testimony. Rainey would have testified that through his personal experience as a hunter in shooting animals using a .22 caliber weapon, he had never encountered a fragmented .22 caliber bullet. Additionally, Rainey would have described his experiments involving his firing .22 caliber bullets into various surfaces, such as wood, plastic, and metal, from a distance of between one to two feet, and on one occasion, from a point of contact. The only time a bullet fragmented was when Rainey fired into the metal surface; most other times, the bullet failed to even penetrate the surfaces. It was not disputed that Rainey had no academic credentials that would qualify him as an expert in the field of firearms or ballistics.

The trial court excluded the testimony on the ground that the defense had failed to establish a proper foundation demonstrating that the experiments were conducted in a scientific manner, using comparable circumstances. The trial court concluded further that Rainey's...