Stewart v. State

• Decision Date: 03 March 1975
• Docket Number: No. CR,CR
• Citation: 257 Ark. 753,519 S.W.2d 733
• Parties: Wade Earl STEWART and Tommy McGhee, Appellants, v. STATE of Arkansas, Appellee. 74--121.
• Court: Arkansas Supreme Court

Page 733

519 S.W.2d 733

257 Ark. 753

Wade Earl STEWART and Tommy McGhee, Appellants, v. STATE of Arkansas, Appellee.

No. CR 74--121.

Supreme Court of Arkansas.

March 3, 1975.

Rehearing Denied March 17, 1975.

Harold L. Hall, Public Defender, Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen., O. H. Hargraves, Deputy Atty. Gen., Lee A. Munson, Pros. Atty., John Wesley Hall, Jr., Deputy Pros. Atty., Little Rock, for appellee.

HOLT, Justice.

Appellants were charged by information with murder in perpetration of an attempt to commit robbery. Ark.Stat.Ann. § 41--2205 (Repl.1964). The jury found them guilty of murder in the first degree and assessed their punishment at life imprisonment in the Department of Correction. Appellants first assert for reversal that the evidence is insufficient because there is no substantial evidence from which the jury could find that murder resulted from an attempt to perpetrate robbery. Upon appellate review, it is firmly established that we consider that evidence which is most favorable to the appellee, with all reasonable inferences deducible therefrom, and affirm if any substantial evidence exists to support the jury verdict. Miller v. State. 253 Ark. 1060, 490 S.W.2d 445 (1973).

A witness for the state, Bullock, testified that he met the appellants at a party. Latter that evening, he, appellants, and others went to the victim's apartment '(T)o take some dope' and we would get it with a gun '(I)f it was necessary.' Appellant McGhee was armed with a .38 caliber pistol and appellant Stewart carried a sawed-off shotgun. The state's witness testified that he saw McGhee pull his pistol on the victim who then put his hands up. Thereupon, Stewart was observed jumping over a porch railing and the shotgun he was carrying discharged. The witness then heard several small caliber shots. Another witness for the state, who was living with the victim, testified that she heard 'a loud shot and then three other shots.' The victim fled to their apartment where she observed him 'covered with blood.' He spontaneously told her 'that as soon as he (the victim) opened the door this one kid was standing there and flashed this money in his face for some reason, and then this other one, this little one, jumped onto the porch with a shotgun and shot him and he turned to run up the stairs and then the other one shot him three times with the pistol.'

Appellants Stewart and McGhee made separate written statements which were read to the jury subsequent to Bullock's testimony. Neither testified. Stewart admitted in his statement that he was armed with a shotgun and accompanied his codefendant, McGhee, and others in furtherance of the plan to rob the victim. McGhee admitted in his statement that he accompanied his codefendant, Stewart, and others to the victim's apartment and that he, McGhee, was armed with a .38 caliber pistol. As soon as the victim opened the door, he, McGhee told him he wanted to buy some dope and that 'Danny' had sent him. During the discussion, one of the group said 'If he won't sell it to us we'll just take it.' A blast from a shotgun followed and thereupon 'he (McGhee) grabbed the pistol from my rear pocket and struck Lenoris (a companion) in the face, so he wouldn't shoot. As I slapped at Lenoris, the pistol did go off, but I'm not sure when it struck.'

Certainly the state adduced ample substantial evidence that would justify the jury in finding the appellants committed murder in an attempt to perpetrate robbery. They went heavily armed to the victim's residence where they confronted him at the door. When the victim 'throwed his hands up,' he was wounded by a shotgun blast into the right side of his chest and wounded in other areas of his body from two pistol shots. The 'transaction had gone beyond intent and preparation and had passed into acts which amounted to an attempt at robbery.' Turnage v. State, 182 Ark. 74, 30 S.W.2d 865 (1930).

Appellants next contend that the court erred in admitting evidence of an autopsy not performed by the state medical examiner or one of his authorized assistants in violation of the defendants' state and federal constitutional rights. Ark.Stat.Ann. § 42--611 et seq., establishes the office of state medical examiner and prescribes the duties and the stringent qualification required of that individual. The present medical examiner meets the statutory requirement and is a forensic pathologist based upon specialized training. § 42--623 provides that records and reports made under authority of the act 'shall be received as competent evidence . . . upon being properly attested.' § 42--615 requires that the state medical examiner be notified whenever a person dies from violence or under unusual circumstances. Appellants assert that the purpose of this statute is to give the state medical examiner, a medicolegal expert, the exclusive authority, here, to conduct the postmortem examination. Therefore, an autopsy performed without this authority is inadmissible evidence.

We do not construe the statute to absolutely prohibit another doctor, who is competent to do so, from performing an autopsy and then testifying. The purpose of the act, and properly so, was to create a scientific and uniform method of investigating violent and unusual deaths. In State v. Ruggiero, 93 R.I. 241, 174 A.2d 555 (1961), the proper statutory procedure was not followed and the court said:

These contentions lack merit. A careful reading of Chap. 23--4 shows clearly that it does not apply to matters affecting the admissibility of evidence. It has no bearing on the question of the admissibility of the testimony of a medical expert who is otherwise qualified to perform an autopsy, or on the admissibility of the autopsy report prepared by such medical expert.

In the case at bar, the victim was taken to a local hospital suffering from a shotgun blast to the right chest and pistol wounds to the wrist and knee. Following removal of the right lung by his personal physician, the victim was placed in intensive care. Five days later additional surgery was required to remove several ribs to curtail infection. Five days later while still in intensive care, the victim suddenly died. Without notifying the state medical examiner, the victim was partially embalmed and then an autopsy was performed by an anatomical pathologist at the hospital in the regular course of his duties there. His training does not meet the strict statutory standard required of a state medical examiner. However, he has performed over 300 autopsies in addition to testifying in court. This pathologist testified that the victim died from a blood clot in the pulmonary artery and that the blood clot resulted from either the surgery or the gunshot wound which required the surgery. Needle marks were found in the victim's legs which appellants assert indicate he was a drug user. The doctor testified that an improper injection of drugs could have caused death and the embalming procedure could have nullified the presence of drugs. Regardless, we perceive no prejudice to the appellants based upon this pathologist's testimony. Furthermore, it was cumulative to the testimony of the victim's attending physician, who observed the victim each day. He testified:

Q. What in your opinion, was the cause of death of Nicholas Papadoplas?

A. Nicholas Papadoplas died of a pulmonary embolism, which is secondary to the gunshot wound of the chest.

The surgeon who operates on and attends the victim may give an opinion as to the cause of death without reference to an autopsy. McClendon v. State, 197 Ark. 1135, 126 S.W.2d 928 (1939).

From what we have previously indicated, suffice it to say that the court did not err in refusing appellants' requested instruction for a directed verdict of acquittal; their requested instruction that 'where substantial evidence alone is relied upon to establish the cause of death . . .;' and their requested instruction that the sheriff and the state medical examiner must be notified in the circumstances here.

Appellants assert that the court erred in admitting into evidence the cross-implicating confessions of appellants. Each confession was read to the jury with only the codefendant's name deleted and replaced by a blank line. As previously indicated, neither of the appellants testified. Appellants assert that a cross-implicating confession by a nontestifying codefendant, as here, denied them their constitutional right to be confronted by that witness and, therefore, was in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We cannot agree with appellants that Bruton or our own subsequent cases dictate a reversal in the case at bar. In Bruton, the cross-implicating confession of a codefendant who did not testify, was admitted into evidence against Bruton, who had made no admissions or confession. Neither did he testify. There it was held that this denied Bruton his constitutional right to be confronted by the witness against him. Thereafter, in Mosby and Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), we reversed the trial court because it gave an instruction, unrequested by the defendant, stating that his failure to testify could not be considered as evidence of guilt. However, in view of a retrial, we deemed it necessary to observe, since cross-implicating confessions were permitted there, that:

The answer to the problem (in Bruton) seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion is feasible and can be done without prejudice, or to grant separate trials.

The progeny of that case is Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971); Byrd v. State, 251 Ark. 149, 471 S.W.2d 350 (1971); Grooms v. State, 251 Ark. 374, 472 S.W.2d 724 (1971); and Patrick v. State, 255 Ark. 10, 498 S.W.2d 337 (1973). In the case at bar, as indicated, the codefendant's name in each cross-implicating confession...