Webb v. State, CR

• Decision Date: 21 January 1997
• Docket Number: No. CR,CR
• Citation: 938 S.W.2d 806,327 Ark. 51
• Parties: Walter Anthony WEBB, Appellant, v. STATE of Arkansas, Appellee. 96-220.
• Court: Arkansas Supreme Court

Page 806

938 S.W.2d 806

327 Ark. 51

Walter Anthony WEBB, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-220.

Supreme Court of Arkansas.

Jan. 21, 1997.

Phillip Wells, Jonesboro, for Appellant.

Winston Bryant, Attorney General, David R. Raupp, Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant, Walter Anthony Webb, appeals the judgment of the Greene County Circuit Court finding him guilty of two counts of capital murder for the murders of Aurora Carney and James Graves on October 8, 1994. Appellant was tried by a jury and sentenced to life imprisonment without parole on both counts. Jurisdiction is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(2). Appellant raises three arguments for reversal: (1) That there was insufficient evidence of premeditation and deliberation to convict him of capital murder in both deaths; (2) that the trial court erred in allowing the State to present hearsay evidence of a statement made by Appellant to a clinic nurse; (3) and that the trial court erred in refusing to grant a mistrial when a law enforcement officer testified about what Appellant had told him concerning Carney's participation in witchcraft and voodoo. We do not reach the merits of Appellant's first point due to a procedural bar, and we find no merit to the remaining arguments and affirm the trial court's judgment.

I. Facts

The evidence presented at trial revealed the following facts. On Sunday morning, October 9, 1994, Ginger Sain went to her father's apartment in Rector, Arkansas, to check on his welfare. When she arrived at the apartment, she unexpectedly discovered her father, James Graves, lying on his back on the floor with blood coming out of his nostrils and an unknown woman, later identified as Aurora Carney, sitting slumped over in a chair. Mrs. Sain contacted her husband and then contacted the paramedics and the police. The paramedics confirmed that Graves and Carney were dead. The state medical examiner later determined that Carney died as a result of a single gunshot wound to the left side of her head and that Graves died as a result of two gunshot wounds to the head, one on either side.

The same day the bodies were discovered, Investigator Steve Huddleston, of the Arkansas State Police, conducted an interview with Appellant. At trial, Huddleston testified that when he informed Appellant that Carney, who was Appellant's fiancee, was dead, Appellant seemed to be in shock. Huddleston stated that Appellant's response was, "In a car accident?" Upon being informed by Huddleston that Carney had been murdered, Appellant began supplying the officer with the names of several men who might commit such a crime, one of whom had allegedly been blackmailing Carney. Appellant told the officer that he had not seen or heard from Carney since Thursday, October 6, 1994.

Investigator Huddleston interviewed Appellant again three days later on October 12, 1994. Appellant stated that he loved Carney and that they had planned to be married. Huddleston testified that those were the only complimentary things Appellant said about his future wife and that Appellant then proceeded to speak of Carney's drunkenness and of fights and conflicts between the couple. Appellant informed the officer that Carney was a member of a necromanic society, which Appellant described as a "book of death society," and that Carney was interested in witchcraft and voodoo. Appellant further stated that Carney actually had a voodoo doll constructed to represent her ex-husband and that she had buried the doll in her backyard as a ritualistic act of her desire to see her ex-husband dead. Again, as in the first interview, Appellant offered no information about the killings, although he later admitted to being present when the deaths occurred.

Appellant left the state of Arkansas on October 13, 1994, the day after his second interview with the police. On October 21, 1994, and again on October 26, 1994, Appellant called his friend, Judy Quigley, and informed her that he had been at Graves's apartment on the night of the murders and that Graves had shot Carney. Appellant told Quigley that he had struggled with Graves over the gun and killed Graves in self-defense, shooting him once in the stomach and once in the head.

Susan Elliott, Appellant's ex-wife, testified that she, too, had received telephone calls from Appellant during the time he had removed himself from the state, in which he informed her of his participation in the deaths of Graves and Carney. In describing the struggle that took place between himself and Graves, Appellant told Elliott that after he wrestled the gun away from Graves, "I did the fatal deed. I took the gun and I shot him in the head."

Dr. Charles Sturner, Chief Medical Examiner at the Arkansas State Crime Laboratory, testified that the gunshot wound to the left side of Aurora Carney's head was a contact or near-contact wound. Dr. Sturner further stated that the wound to Aurora Carney's head was consistent with an "execution" wound because the wound was inside the left ear, which indicated that the gun would have had to have been held either against or extremely close to a vital organ, in this case the head and neck area. Dr. Sturner described a similar gunshot wound to the left side of James Graves's head, as well as an additional gunshot wound on the right side of Graves's head. Dr. Sturner stated that either shot in and of itself would have been fatal and that a second shot was not necessary to ensure the victim's death. Regarding the gunshot wound to the left side of Graves's head, Dr. Sturner stated that the gun would have actually been placed in close proximity to the head. As for the wound on the right side of Graves's head, Dr. Sturner stated that the gun would have been a little farther away, approximately six inches or less from the head. Dr. Sturner stated further that it was possible that the superficial injuries to Graves's hands could have resulted from his being shot and falling to the ground. Finally, contrary to Appellant's version of the night's events, Dr. Sturner stated unequivocally that there was no gunshot wound to Graves's stomach.

Gary Lawrence, a criminalist with the trace evidence section of the Arkansas State Crime Laboratory, tested the gun that was used in the murders and conducted tests for the presence of gunshot residue on the hands of both victims. Lawrence stated that he found gunshot residue on the hands of James Graves. Lawrence stated that when gunshot residue is found on a person, it means that the person has either fired a gun, or has been in close proximity to the firing of a gun, or has been in a gunshot residue environment. Lawrence testified that he found that the residues from the test-firings of the murder weapon conducted at the crime lab were higher than the residues found on Graves's hands. Lawrence stated that the test-firing was representative of someone who had fired the gun and that the residues on Graves's hands were not consistent with that.

Appellant took the stand in his own defense and testified that during the evening of Friday, October 7, 1994, he had made numerous attempts to contact Carney. He stated that when he left his bookstore in Blytheville, Arkansas, just after 12:00 a.m. on Saturday, October 8, 1994, he went to Carney's home in Kennett, Missouri, to see if she had left him a message. Appellant stated that when he noticed her car was not in the driveway, he became curious as to Carney's whereabouts, because she had told him on Friday that she was going to a Alcoholics Anonymous retreat and that she would be riding with another person. Appellant stated that he left Carney's house and drove to Graves's apartment in Rector because he thought Carney might be there. Appellant arrived sometime around 2:00 a.m., and, after having seen Carney's car parked in the alleyway, he went to the door of the apartment and shook the door until Graves answered the door. Appellant stated that when he was let into the apartment, he took a set of keys belonging to Graves out of the door lock, because he did not want to get locked inside in the event there was trouble.

Appellant testified that he did not bring a gun to the apartment but that it was Carney who initially secured the gun, which belonged to Graves, and pointed it at Appellant while threatening to shoot him. Appellant stated that he convinced Carney to give him the gun, which he set down on a nearby suitcase, and that she had decided to leave with him when Graves picked up the gun. Appellant stated that Graves began waving the gun around in the vicinity of Carney, and that the gun went off, shooting Carney in the head. Appellant stated that he then began to struggle with Graves over the gun, and that ultimately, he had shot Graves once in the stomach and once in the head in self-defense.

Appellant stated that when he realized Carney and Graves were both dead, he left the apartment. He stated further that when he got into his van, he realized he had left the gun in the apartment and he went back in and got the gun. Appellant stated that he later drove to Burdette, Arkansas, and threw the gun off a bridge into the water. Appellant stated that before he disposed of the gun, however, he emptied the shells and threw them in an area near the edge of the bridge. Appellant stated that he then drove to another bridge and disposed of Graves's keys.

On cross-examination, Appellant stated that he was forty-one years old at the time, stood over six feet tall, weighed over 240 pounds, and was nearly a black belt in judo. Appellant stated further that Graves was sixty-four years old, stood five feet ten inches tall, and weighed a little over 150 pounds. Appellant admitted that he did nothing to help either victim after they had been shot and that he later lied to the police. He admitted further that, although he was in shock, he had the forethought to go back and retrieve...