Tate v. State , 367 Ark. 576 ( 2006 )

Betty C. Dickey, Justice.

Appellant Kevin Tate was convicted by a jury of the first-degree murder of Melissa Portwood and sentenced to forty years’ imprisonment. He asserts four points on appeal, arguing that the trial court erred: (1) by admitting the testimony of Brande Schaffer that Tate fired a gun near her two days before the shooting death of Portwood; (2) by allowing the State to improperly place Tate’s character in issue; (3) by denying Tate’s motion for a mistrial because of the prosecutor’s remarks during closing arguments; and, (4) by admitting a series of photographs during the penalty phase of the trial depicting episodes in Portwood’s fife. We find no error, and thus we affirm the decision of the trial court.

Onjanuary 31, 2004, Hot Springs Police responded to a 911 call at the address in Hot Springs where Tate lived with his girlfriend Portwood, and Portwood’s friend, Brande Schaffer. Tate made the 911 call and he was on the scene when the police arrived. Portwood was inside the apartment, suffering from a gunshot wound to the head. Portwood died the same night, shortly after her arrival at the hospital in Hot Springs. Tate was arrested at the scene and transported to the jail in Hot Springs. Tate originally informed the police that he had been cleaning a gun which accidentally discharged, wounding Portwood. He later stated that he accidentally shot Portwood while they were in the midst of an argument. The murder weapon was found lying on the bed beside Portwood. A note from Portwood to Tate dated January 28 was also found, informing Tate that Portwood was terminating their relationship.

On August 18, 2005, the State filed a motion to admit evidence pursuant to Ark. R. Evid. 404(b), seeking to admit, among other things, evidence that Tate had fired a gun in Portwood’s apartment in September 2003, in an attempt to frighten Schaffer. In an opinion letter dated September 27, 2005, the trial judge failed to rule on that shooting incident. On October 13, 2005, the State filed an amended motion to admit 404(b) evidence, which stated that the shooting incident actually occurred on January 29, 2004, two days before the murder, and not in September 2003, as the previous motion had stated. At a pretrial hearing held in chambers on October 17, 2005, the trial court ruled that the incident was admissible pursuant to Rule 404(b) due to the change in date and its resulting increased proximity to the crime.

At trial on October 17, an acquaintance ofPortwood’s, Staci Musler, testified that to her knowledge, Tate was not employed. The Appellant objected and moved for a mistrial, contending that the State had thereby introduced impermissible evidence of Tate’s character. The trial judge denied the motion for a mistrial. During his closing argument, Tate noted that the State did not play the 911 call made by Tate after the shooting. In its second closing argument, during the penalty phase, the State remarked that the Appellant had also chosen not to play the tape. Tate then objected to that statement and moved for a mistrial on the basis that the State’s comments had shifted the burden of proof to the Appellant. The trial judge again denied a motion for a mistrial.

Staci Musler also testified that on the night before the murder, she had a conversation with Tate, and told him that Portwood would leave him if he persisted in his dalliances with other women. Tate responded, “No she won’t. I’ll kill her.” The jury returned a verdict finding Tate guilty of first-degree murder on October 17, 2005.

During the penalty phase of the trial held on October 18, 2005, a series of twelve photographs depicting scenes from Port-wood’s life were admitted into evidence. The trial court had earlier denied Tate’s motion in limine to exclude the photographs. Tate then filed a timely notice of appeal.

The Appellant’s first point on appeal is: The trial court erred by allowing into evidence the testimony of a witness that the appellant had fired a handgun into a couch.

Brande Schaffer, who lived in the house with the victim and defendant, testified that approximately two days prior to the killing in the instant case, the Appellant approached her when she was sitting on a couch inside Portwood’s apartment. He was holding the pistol that was later identified as the murder weapon. She further testified that the Appellant asked her if she was afraid of him, and that upon receiving a negative response, the Appellant discharged the weapon into the couch near her foot. This testimony was admitted by the trial court pursuant to Ark. R. Evid. 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). The list of exceptions set out in the rule is exemplary and not exhaustive. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996).

The Appellant argues that the bad act in question here, the discharge of the pistol, is not admissible because it is not substantially similar to the crime charged, and cites Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003), and Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995), in support of that argument. In Barrett, we held that the defendant’s physical assault on the same victim approximately one and one-half years prior to the murder in that case was admissible under 404(b) when the body exhibited injuries similar to those produced by the prior assault. In Russey, the evidence admitted pursuant to 404(b) was a police officer’s testimony that approximately three months before the defendant’s murder of his wife, while the officer was responding to a domestic disturbance call, he observed the shotgun with which the wife was killed lying loaded on a bed in the defendant’s home. Russey, 322 Ark. at 788, 912 S.W.2d at 421.The defendant maintained that he had accidentally fired the gunshot which killed his wife, and we held that the officer’s observance of the murder weapon during the domestic disturbance call was admissible under Rule 404(b) to show absence of mistake or accident. Id.

Russey is instructive in the present case. Here, the evidence to which Tate objects is testimony that he intentionally fired the murder weapon inside the house where the killing occurred, approximately two days prior to the alleged murder, in an apparent attempt to intimidate the victim’s roommate. This evidence has more independent relevance than the evidence admitted in Russey, which was the mere observance of the murder weapon during a domestic disturbance three months prior, and did not involve the handling or discharge of the weapon.

Tate maintained that he accidentally fired the shot that killed Portwood. In Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006), the defendant was convicted of manufacturing methamphetamine. At trial, he claimed that he had no knowledge of how a methamphetamine lab happened to be in his van. Id. There, we held that the defendant’s prior arrests for the manufacture of methamphetamine, and for shoplifting methamphetamine precursors, were relevant to show motive, intent, and absence of mistake or accident as to his manufacture of the drug. Id.

The present case is similar. We find that the evidence of Tate’s intentional discharge of the murder weapon in the manner and circumstance described above was relevant to show lack of mistake or accident. Moreover, considered in conjunction with the testimony that Tate uttered a contingent threat against Portwood’s life on the night before her murder, the shot into the couch is probative of Tate’s motive and intent to commit the murder. For the foregoing reasons, we conclude that the trial judge did not abuse his discretion by admitting the evidence.

The Appellant’s second point on appeal is: The State improperly placed the appellant’s character in issue in its case in chief.

A witness for the prosecution testified that to her knowledge, Tate was unemployed. The Appellant objected, and moved for a mistrial. The trial court overruled the objection and denied the motion for a mistrial. The Appellant considers that the effect of this testimony was to impugn his character in contravention of Ark. R. Evid. 404(a), in that it portrayed the appellant as a “worthless parasite living off the victim.” Therefore, the Appellant contends that the trial court erred in denying his motion for a mistrial.

A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the decision will not be disturbed on appeal. Id. We defer to the trial court, as it is in a superior position to determine the effect of the allegedly prejudicial remark on the jury. Id.

Rule 404(a) states in pertinent part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.

Initially, it should be noted that the status of being unemployed, yet cohabitating with one who is employed, need not carry a connotation of parasitism, as the Appellant alleges, but may instead be merely symbiotic, i.e., mutually beneficial. The State argued that the unemployment of Tate was relevant to show motive, because the impending termination of his relationship with Portwood evidenced by the letter indicated that Tate was soon to lose the advantages that he derived from the relationship, such as free lodging and transportation, upon which he was dependent. This was a prospect which might be expected to arouse Tate’s ire, and thus also might be illuminating as a motive for Tate’s violent action against Portwood. This court has held that when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the criminal act may, as a rule, be shown. See Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004). Furthermore, the State is entitled to produce evidence showing circumstances which explain the act, show a motive, or illustrate the accused’s state of mind. See Id.

It is doubtful whether the bald fact of unemployment, in relation to the crime here, constitutes the type of character evidence contemplated by Rule 404(a). In any case, because of the possible relevance that his unemployment had to Tate’s motive for the present crime, the trial judge did not abuse his discretion by declining to declare the drastic remedy of a mistrial.

The Appellant’s third point on appeal is: The prosecutor’s remarks in closing argument shifting the burden of proof to the appellant were reversible error.

During closing arguments for the penalty phase, the Appellant’s counsel referred to the fact that the State possessed the tape of the 911 call that Tate made after the alleged murder but did not play it. Subsequently, during its closing argument for the penalty phase, the State admitted that it had the 911 tape but did not play it, and additionally stated that the defense also could have played the tape, but chose not to do so. The Appellant objected and moved for a mistrial. The trial judge sustained the objection, but denied the motion for mistrial. He then admonished the jury to disregard the remarks of the prosecutor, and stated that those remarks were not evidence. The Appellant contends that the denial of his motion for mistrial was reversible error, because the prosecutor’s comments improperly shifted the burden of proof to the Appellant.

We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest abuse of discretion. Cook v. State, 316 Ark. 384, 386-87, 872 S.W.2d 72, 73 (1994). Generally, such an error may be cured by a remedial instruction from the court. Id. Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994).

In Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991), the prosecutor remarked during closing arguments upon possibly incriminating matters that were left unsaid by a witness for the State. The defense objected, and the trial court overruled. During the cross-examination of that witness, defense counsel had alluded to prior statements made by the witness which possibly contradicted his testimony. This court found that the defense counsel’s remarks opened the door to a response by the State on matters outside the testimony, and thus the trial court did not abuse its discretion by overruling the objection. Nelson, 306 Ark. at 460, 816 S.W.2d at 161.

In Cook v. State, supra, we upheld the trial judge’s denial of a motion for a mistrial when the prosecutor commented that the defense had failed to call an additional alibi witness to corroborate the testimony of a witness who was called. The trial court admonished the jury after that statement by the prosecutor. We noted that the remark was not about the defendant’s refusal to testify, in violation of his Fifth Amendment privilege against self incrimination, but instead concerned the credibility of a witness. We held that even if the prosecutor’s remark was an attempt to shift the burden, the trial court did not abuse its discretion by determining that the admonishment cured any possible prejudice. Cook, 316 Ark. at 387, 872 S.W.2d at 74.

In the present case, the prosecutor’s statements concerning the 911 tape were made after the defense counsel opened the door by remarking upon the State’s failure to play the tape, they did not concern the defendant’s failure to testify, and they do not amount to an appeal to the juror’s passions. An admonishment was given to the jury regarding the prosecutorial statements. In these circumstances, the trial judge did not manifestly abuse his discretion by refusing to grant the extreme remedy of a mistrial.

The Appellant’s fourth point on appeal is: The admission into evidence during the penalty phase of a photographic history of the victim’s life was a denial of due process.

The State introduced twelve photographs depicting the life of the victim during the penalty phase. In Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997), this court affirmed the trial court’s admission of a series of photographs during the penalty phase, which was much more extensive and detailed than the series in question here, consisting of some one hundred and sixty photographs depicting various scenes in the life of a murder victim. Also, first-degree murder is a Class Y felony; see Ark. Code Ann. § 5-10-102, which carries a sentencing range of ten to forty years or life. Ark. Code Ann. § 5-4-401 (a)(1). A defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence. See Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985).

Tate was sentenced to forty years in prison. The maximum sentence he could have received was life in prison. Tate’s sentence was less than the maximum possible sentence for his conviction, and thus he cannot demonstrate that he was prejudiced by the sentence. Because the Appellant is unable to demonstrate that he was prejudiced by the sentence, we need not consider his due process argument regarding the introduction of the photographs.

Affirmed.

Hannah, C.J., dissents.