Tackett v. State

• Decision Date: 20 February 1989
• Docket Number: No. CR,CR
• Citation: Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (Ark. 1989)
• Parties: Thomas Jeffery TACKETT, Appellant, v. STATE of Arkansas, Appellee. 88-137.
• Court: Arkansas Supreme Court

Page 410

766 S.W.2d 410

298 Ark. 20

Thomas Jeffery TACKETT, Appellant, v.STATE of Arkansas, Appellee.

No. CR 88-137.

Supreme Court of Arkansas.

Feb. 20, 1989.

Jeff Rosenzweig, Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

AppellantThomas Jeffery Tackett was convicted of manslaughter and sentenced to seventeen years imprisonment.For reversal he argues that the trial court erred in holding that the prosecution could impeach his testimony with evidence of prior convictions arising from the same incident and in permitting the prosecution to use these prior convictions to enhance punishment.We hold that these arguments have merit and reverse and remand.

In addition, Tackett contends that the trial court erred in refusing to give the jury instructions on lesser included offenses and that his conviction should be reversed because the information did not conform to the proof and because the State failed to prove the victim's cause of death.He also alleges that his prosecution is barred by principles of double jeopardy, speedy trial guarantees, the statute of limitations, and due process guarantees.We will address these issues since they are likely to arise on retrial.

On March 24, 1983, on U.S. Highway 65 North in the town of Jefferson, Arkansas, Tackett drove his van only two to three feet behind a car driven by Lesa Diffee.With the front of his van, Tackett began to strike the rear bumper of the Diffee car, causing Diffee to lose control of her car.In the ensuing crash, Nancy House, a passenger, was killed instantly; Lesa Diffee was injured but later recovered; and another passenger, Denise Barrentine, was injured and went into a coma.On March 30, 1983, Tackett was charged with manslaughter (Ark.Stat.Ann. § 41-1504(Repl.1977), currently Ark.Code Ann. § 5-10-104(1987)) in the death of Nancy House and leaving the scene of an accident (Ark.Stat.Ann. § 75-901(Repl.1981), currently Ark.Code Ann. § 27-53-101(Supp.1987)).In September 1983he was convicted of both offenses and sentenced to a term of eight years imprisonment on the manslaughter conviction and a $10,000.00 fine on the leaving the scene of an accident conviction.He then appealed the manslaughter conviction.The court of appeals affirmed.SeeTackett v. State, 12 Ark.App. 57, 670 S.W.2d 824(1984).

During this entire period, Denise Barrentine remained in a coma.On March 2, 1987, she died; on April 29, 1987, Tackett was charged with manslaughter for recklessly causing her death.

By pre-trial motion Tackett sought dismissal of the manslaughter charge on the grounds his prosecution was barred by principles of double jeopardy, speedy trial guarantees, the statute of limitations, and due process guarantees.The trial court denied the motion.

Tackett then sought a writ to prohibit the State from proceeding with his prosecution based upon the grounds stated in his pre-trial motion.We denied his petition in Tackett v. State, 294 Ark. 609, 745 S.W.2d 625(1988), holding that neither double jeopardy nor the speedy trial rules barred his trial for recklessly causing the death of Denise Barrentine.As for his other complaints, we held that they were not yet ripe for decision.Thereafter, Tackett was convicted of manslaughter.He appeals from this conviction.

I.IMPEACHMENT WITH PRIOR CONVICTIONS.

Tackett argues that the trial court erred in ruling that the prosecution could impeach his testimony with evidence of his prior convictions for manslaughter and leaving the scene of an accident arising from the same incident.We agree.

At a pre-trial hearing, defense counsel asked the trial court to rule that if Tackett elected to testify, the prosecution could not impeach his credibility with the convictions for manslaughter and leaving the scene of an accident arising from the same incident.Following the court's denial of this motion, Tackett elected not to testify.

Under Ark.R.Evid. 609(a)(1), a witness's credibility may be attacked by admitting evidence that he or she has been convicted of a crime only if (1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted; and (2)the trial court determines pursuant to Ark.R.Evid. 403 that the probative value of admitting this evidence outweighs its prejudicial effect to a party or witness.Pollard v. State, 296 Ark. 299, 756 S.W.2d 455(1988).A trial court has wide discretion in determining the admissibility of such evidence, and its decision will not be reversed absent an abuse of discretion.Id.

Under the circumstances of this case, the prejudicial effect of admitting the prior convictions for manslaughter and leaving the scene of an accident outweighs the probative value of the convictions as bearing on credibility.Since both convictions arose out of the same occurrence as the present manslaughter conviction, a juror would logically conclude that if Tackett was convicted of manslaughter and leaving the scene of an accident in the prior case, he must have committed manslaughter in the case at bar.For this reason, we find that the trial court abused its discretion in ruling that the prosecution could impeach Tackett's testimony with these prior convictions.

II.USE OF PRIOR CONVICTIONS FROM THE SAME INCIDENT TO

ENHANCE PUNISHMENT.

Tackett contends that the trial court erred in allowing the prosecution to use his prior manslaughter and leaving the scene of an accident convictions arising from the same incident as the present manslaughter conviction to enhance punishment.This contention has merit.

In Washington v. State, 273 Ark. 482, 621 S.W.2d 216(1981), we held that a prior conviction was admissible to enhance punishment pursuant to the Habitual Offender Act(Ark.Stat.Ann. §§ 41-1001--41-1005(Repl.1977), currently Ark.Code Ann. §§ 5-4-501--5-4-504(1987)) although the conviction was for an offense occurring after the offense on appeal.This holding was based upon our determination in Conley v. State, 272 Ark. 33, 612 S.W.2d 722(1981), that the Habitual Offender Act, which provides that a prior conviction, regardless of the date of the crime, may be used to enhance punishment, was not designed to act as a deterrent, but is simply punitive.

The obvious intent of the Act is to enhance punishment of a party who has a habit of criminal conduct.The manslaughter charge in connection with the death of Nancy House and the charge for leaving the scene of the accident for which Tackett was previously convicted and the manslaughter charge in connection with the death of Denise Barrentine in the case at bar all arose from Tackett's single act of recklessly driving his car into the victims' car.To utilize these prior convictions arising from one single act to enhance punishment pursuant to the Habitual Offender Act contravenes fundamental fairness and due process.Simply put, there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.

III.ISSUES ON REMAND.

A.LESSER INCLUDED OFFENSES.

Tackett argues the trial court erred in refusing to give the jury instructions on lesser included offenses of (1) battery in the second degree as defined in Ark.Code Ann. § 5-13-202(a)(3)(1987) and (2) battery in the third degree as defined in Ark.Code Ann. § 5-13-203(a)(3)(1987).We disagree.

The threshold question before us is whether battery in the second degree and battery in the third degree as defined in §§ 5-13-202(a)(3)and5-13-203(a)(3) are lesser included offenses of manslaughter as defined in Ark.Code Ann. § 5-10-104(a)(3)(1987).

Before an offense will be considered a lesser included offense of a greater one, three basic requirements must be met: (1) the lesser offense must be established by proof of the same or less than all the elements of the greater offense; (2) the lesser offense must be of the same generic class as the greater offense; and (3) the differences between the two offenses must be based upon the degree of risk or injury to person or property or upon grades of intent or degrees of culpability.Thompson v. State, 284 Ark. 403, 682 S.W.2d 742(1985).See alsoBishop v. State, 294 Ark. 303, 742 S.W.2d 911(1988).

Under § 5-10-104(a)(3), a person commits manslaughter if he recklessly causes the death of another person.Under § 5-13-202(a)(3), a person commits battery in the second degree if he"recklessly causes serious injury to another person by means of a deadly weapon."(Emphasis added.)Under § 5-13-202(a)(3), a person commits battery in the third degree if he"negligently causes physical injury to another person by means of a deadly weapon."(Emphasis added.)

Battery in the second degree and battery in the third degree, as defined, require proof that a deadly weapon was used.In contrast, use of a deadly weapon is not necessary for the commission of manslaughter.SeeFlippo v. State, 258 Ark. 233, 523 S.W.2d 390(1975).Since battery in the second degree and third degree, as defined, require proof of an element not an element of proof of manslaughter, they are not lesser included offenses of manslaughter.SeeAllen v. State, 281 Ark. 1, 660 S.W.2d 922(1983), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617(1985).See alsoRhodes v. State, 293 Ark. 211, 736 S.W.2d 284(1987).Therefore, the trial court did not err in refusing to give the jury lesser included instructions on the offenses in question.

B.CONFORMITY OF INFORMATION TO PROOF.

Tackett contends that his conviction should be reversed and dismissed because the information did not strictly conform to the proof.This contention is meritless.

Tackett was charged by information with committing manslaughter by recklessly causing the death of Nancy Denise Barrentine in Jefferson County, Arkansas, on March 2, 1987.

At trial the State introduced evidence that on March 24, 1983, in Jefferson County, Arkansas, Tackett caused the...