Ulmer v. State, 5719
| Decision Date | 25 September 1972 |
| Docket Number | No. 5719,5719 |
| Citation | 484 S.W.2d 691,253 Ark. 106 |
| Parties | Harris ULMER, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
William C. McArthur, Little Rock, for appellant.
Ray Thornton, Atty. Gen., by Jay N. Tolley, Asst. Atty. Gen., Little Rock, for appellee.
On August 4, 1971, Harris (Tootsie) Ulmer was found guilty of first degree murder of Paul Guajardo on the 26th day of June, 1971. He asks us to reverse the judgment on the following grounds:
I. The trial court erred in modifying defendant's instruction number three as tendered and subsequently giving the modified version in the instructions to the jury.
II. The trial court erred in failing to declare a mistrial due to unsupported and inflammatory statements by the prosecuting attorney in his closing arguments to the jury.
III. The trial court erred in allowing, in rebuttal testimony by Deputy Sheriff Comer Johnson and Chief Deputy Prosecuting Attorney Robert Brown, references to prior statements by defense witness Evonne Smith without the introduction of the available written transcripts of the prior statements.
IV. The evidence as elicited at the trial is insufficient to sustain the jury's verdict of murder in the first degree.
At the outset, we will say that we have carefully reviewed the evidence in the light most favorable to the state, and are unable to say that there is no substantial evidence to support the jury verdict. The principal argument advanced by appellant on this point is that the evidence clearly shows that he acted in the heat of passion, and without deliberation and premeditation. We do not agree.
There was testimony showing that: after a 20- or 30-minute exchange of words among Ulmer, the deceased, Alex Guajardo and Johnny Whitehead, across the street from Smith's DX Station, Paul and Alex Guajardo returned to the service station, where they had been before leaving to talk to Whitehead; during the conversation Ulmer had remonstrated with Whitehead about alleged mistreatment of Ulmer's sister, the wife of the operator of the station, who assisted in the business, and the deceased demanded an apology by Ulmer to Whitehead for maligning Whitehead's father; Paul, standing by a soft drink box at the service station, then exchanged words with appellant and appellant went into the building and emerged three or four minutes later carrying a .22-caliber pistol with which he immediately shot Paul Guajardo, who died as a result of the wound then inflicted; Paul Guajardo was in a sitting position talking to Ulmer's sister when shot, and Ulmer fired the shot at a 'downward angle'; the shot that caused decedent's death entered his right chest and went downward and posteriorly, indicating that it came from above and the right of the victim's head; Ulmer's sister prevented him from firing other shots at one or both of the Guajardo brothers. Premeditation and deliberation may be inferred from the circumstances of the case, such as the character of the weapon used and the manner in which it was used, the nature of the wounds inflicted, the conduct of the accused and the like. House v. State, 230 Ark. 622, 324 S.W.2d 112; Weldon v. State, 168 Ark. 534, 270 S.W. 968. See also Walker v. State, 241 Ark. 300, 408 S.W.2d 905, appeal dismissed, cert. denied, 386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403, reh. denied, 387 U.S. 926, 82 S.Ct. 2027, 18 L.Ed.2d 987.
Whatever may have occurred between Ulmer and Paul Guajardo, prior to the time Ulmer went into the service station, admittedly to retrieve the pistol he had left there, it was within the province of the jury to find that the shooting of Guajardo was a deliberate, premeditated act, regardless of any previous provocation.
We find no error in the court's modification of appellant's requested instruction No. 3. As offered, the instruction read:
It is competent to prove threats made against the other, if such have been made, for the purpose of shedding light upon the state of mind existing between the parties at the time of the difficulty, and also for the purpose of shedding light upon which was the aggressor in the combat. Likewise, it is competent to prove similar communications made to the defendant. Threats, or such other communications are to be considered by you, if any such were made, for the purpose of shedding light as to the condition of mind between the two parties at the time of the difficulty, and as I have said before, to shed light upon which was the aggressor in the difficulty.
As modified and given, it read:
It is competent to prove threats or other communications made by one against the other, if such have been made, for the purpose of shedding light upon the state of mind existing between the parties at the time of the difficulty, and also for the purpose of shedding light upon which was the assailant in the combat.
Appellant's objection to the instruction as given was a general one, which did not mention the ground now argued. 1 1 In the first place, we do not agree that the court's action was arbitrary. It is a much clearer and more concise instruction, as modified. We do not know of any rule that prevents the court from modifying a requested instruction to achieve such an end, even though the instruction as requested may not be an erroneous declaration of law. Circuit judges should be encouraged to do this, not discouraged. Furthermore, we do not agree with appellant that the modification so emphasized the consideration of threats as to limit the jury's consideration of 'similar communications' or 'non-verbal aggressive acts.'
During the opening argument on behalf of the state, appellant's trial counsel (not the same attorney representing him on this appeal) objected to the following statement by a deputy prosecuting attorney:
MR. HAMNER:
. . . Well, Mr. Rosteck asked them, 'My goodness, didn't you have time to take that knife out of his pocket on the way to the hospital?' What did she say? She said,
MR. ROSTECK:
Now, if the Court please, I did not say that and I object to him making inference that I even suggested she took a knife out of her husband's pocket and I don't like it.
In the closing argument the following occurred:
MR. ANDERSON: 2
. . . He jumped on him a third time. He said, 'I want to know, it's important, what was it? You remember, I got up and objected, badgering the witness.
He had answered, he had said he didn't know.
'Yeah.' I don't want him misrepresenting the facts here. I am getting tired of this.
MR. ANDERSON:
Well, I was not misrepresenting the facts. I am sure they will agree. May I continue, Your Honor?
Go ahead. I think the jury can remember what he testified to.
MR. ANDERSON:
. . . Now, all of the sudden, for the first time she remembers him pulling a knife out with a long, silvery blade right then and advancing upon the defendant.
MR. ROSTECK:
If the Court please, there is no testimony he pulled a knife out of his pocket and advanced on him. I am getting tired of this. I want him to stick to the facts. We emphasized repeatedly that he never pulled a knife out of his pocket at any time. No one saw it. I am getting tired of this.
MR. ANDERSON:
I heard specific mention, Your Honor, of a knife specifically described as a knife, specifically talked about a blade of a knife.
I don't recall anything like that, but go ahead.
The record discloses that appellant's counsel actually asked Mrs. Guajardo if a knife allegedly possessed by her husband could not have easily been disposed of in the interval between the time he was taken from the service station by his brother Alex and the time they picked her up at her home en route to the hospital. He also asked her whether she or the brother took a knife from Paul and whether this brother could have disposed of the knife before the two reached her house. The witness responded:
I don't think he would have taken time. My husband was dying. He wouldn't have took time to search him.
Alex Guajardo testified on direct examination that, after returning to the service station, his brother Paul was sitting in a chair in front of an ice box and in front of the...
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Perry v. State
...the jury to the effect that statements of counsel were to be considered as opinions only would seem to be sufficient. See Ulmer v. State, 253 Ark. 106, 484 S.W.2d 691; Gibson v. State, supra; Camp v. State, supra; Patrick v. State, The trial court has a wide latitude of discretion in contro......
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Brooks v. State, CR
...to any case tried after December 31, 1971. (Ark.Stat.Ann., Vol. 3A, (Supp.1973)). We called attention to this rule in Ulmer v. State, 253 Ark. 106, 484 S.W.2d 691. The objection made here is no more than a general one because appellant did not state distinctly the grounds of objection urged......
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Hamilton v. State, CR77-136
...are elements of criminal activity which are rarely capable of proof by concrete, demonstrative evidence. In Ulmer v. State, 253 Ark. 106, 484 S.W.2d 691 (1972), we stated * * * Premeditation and deliberation may be inferred from the circumstances of the case, such as the character of the we......
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Wilson v. State, CA
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