Hart v. State

Josephine Linker Hart, Judge, dissenting. The appellant shot at a Cadillac in the parking lot of a nightclub. Subse-quendy, he shot at a Hyundai in which the victims were riding while both the vehicle in which the appellant was riding and the Hyundai were traveling down the interstate. The majority concludes that testimony that the appellant shot at the Cadillac was relevant to establish that he fired at the Hyundai with an absence of mistake or accident and that it was part of the res gestae by corroborating evidence that the appellant had possession of a gun. The majority also concludes that the evidence of guilt was so overwhelming that any error committed was harmless. Further, the majority bolsters its decision to affirm by relying on the appellant’s failure to request a limiting instruction that would preclude the jury from using the testimony to conclude that the appellant had a criminal propensity for shooting at cars.

Pursuant to Rule 404(b) of the Arkansas Rules of Evidence, while evidence of other crimes is not admissible to establish a person’s character, it is nonetheless admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 403 of the Arkansas Rules of Evidence provides that even relevant evidence may be excluded if its probative value is outweighed by its prejudicial effect.

According to the abstract, Derrick Stewart was permitted to testify that he saw the appellant shooting and running behind a Cadillac in the parking lot of a nightclub. To Stewart’s knowledge, the appellant did not hit the Cadillac or anything else. The appellant also testified at trial. He admitted to shooting at a Cadillac and a Bronco from his car while the vehicles were traveling down the interstate.

The majority holds that Stewart’s testimony that the appellant shot at the Cadillac in the parking lot was admissible to show the appellant’s lack of mistake or accident when he fired at the Hyundai. However, Stewart’s testimony did not reveal the appellant’s intent when he fired at the Cadillac in the parking lot. Thus, Stewart’s testimony is not helpful in establishing a lack of mistake or accident when he fired at the Hyundai in which the victims were riding. Instead, the testimony provided the exact proof that 404(b) prohibits, that the appellant had a propensity to shoot at cars.

The majority concludes that Stewart’s testimony was admissible as res gestae evidence. Whether or not the appellant possessed a gun at the time of the shooting was established by the appellant’s own testimony; it was unnecessary to rely on Stewart’s testimony to establish that the appellant possessed a gun prior to that. If this was the reason Stewart’s testimony was admitted, then its probative value was clearly outweighed by its prejudicial effect. Moreover, to permit admission of testimony regarding events surrounding the crime simply because the events occurred undercuts the limitations imposed on such evidence by Rules 403 and 404(b). See Hunter v. State, 62 Ark. App. 275 , 970 S.W.2d 323 (1998)(evi-dence of res gestae is proper provided it can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute).

The facts of this case bear a striking resemblance to those in Rowdean v. State, 280 Ark. 146 , 655 S.W.2d 413 (1983), and in Lincoln v. State, 12 Ark. App. 46 , 670 S.W.2d 819 (1984). In Rowdean, the appellant, Rowdean, was convicted of first-degree murder. He committed the murder by shooting the victim while they were outside of a nightclub. The Arkansas Supreme Court held that evidence that Rowdean had earlier that night pulled a gun on another person at a drive-in was not admissible under Rule 404(b). In Lincoln, the appellant, Lincoln, was convicted of attempted first-degree murder. This court concluded that evidence that earlier on the night Lincoln committed the crime, he waved a pistol around during an argument he had with another person, was not admissible under Rule 404(b). This court should reach the same conclusion regarding the similar testimony presented here. The majority concludes that these cases are distinguishable in part because the appellant admitted that he was angry at the occupants of the Cadillac when he shot at them on the parking lot. The appellant, however, admitted to shooting at a Cadillac while it was on the interstate. He never testified that he shot at a Cadillac in the nightclub’s parking lot.

The majority further concludes that a limiting instruction could have cured any prejudice. The instruction, presumably, would have instructed the jury to consider the fact that the appellant was shooting at other cars on the night in question for the limited purpose of proving such things as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. None of these purposes, however, are applicable, and if none are applicable, then the testimony should not have been introduced.

Finally, the majority concludes that the evidence was overwhelming, and consequently, any error committed was harmless. When the evidence of guilt is overwhelming and the error is slight, this court can declare the error harmless and affirm. See Brown v. State, 63 Ark. App. 38, 43 , 972 S.W.2d 956, 959 (1998). Appellant was found guilty of first-degree murder, that with the purpose of causing the death of another person, he caused the death of the victim. The jury was also instructed on the lesser-included offense of second-degree murder, that the appellant knowingly caused the death of the victim under circumstances manifesting extreme indifference to the value of human life. Stewart’s testimony that the appellant shot at the Cadillac may have prejudiced the jury’s deliberations such that they found him guilty of first-degree rather than second-degree murder. Stewart’s testimony was not evidence of the appellant’s purpose to cause the death of another person when he shot at the Hyundai because his testimony did not establish the appellant’s purpose to do so when he shot at the Cadillac. Moreover, the appellant was sentenced to thirty years’ imprisonment. This also indicates that he suffered prejudice. See Mask v. State, 314 Ark. 25 , 869 S.W.2d 1 (1993).

I would reverse and remand.

Pittman, J., joins in this dissent.