{ "id": 1627380, "name": "Harris ULMER v. STATE of Arkansas", "name_abbreviation": "Ulmer v. State", "decision_date": "1972-09-25", "docket_number": "5719", "first_page": "106", "last_page": "115", "citations": [ { "type": "official", "cite": "253 Ark. 106" }, { "type": "parallel", "cite": "484 S.W.2d 691" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "18 L. Ed. 2d 987", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "82 S. Ct. 2027", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "387 U.S. 926", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11356608, 11356101, 11356359, 11356008, 11356215 ], "opinion_index": 0, "case_paths": [ "/us/387/0926-05", "/us/387/0926-02", "/us/387/0926-04", "/us/387/0926-01", "/us/387/0926-03" ] }, { "cite": "18 L. Ed. 2d 403", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "87 S. Ct. 1325", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "386 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180032, 6179875 ], "opinion_index": 0, "case_paths": [ "/us/386/0682-02", "/us/386/0682-01" ] }, { "cite": "408 S.W. 2d 905", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1723964, 1724014 ], "opinion_index": 0, "case_paths": [ "/ark/241/0300-01", "/ark/241/0663-01" ] }, { "cite": "241 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1723964 ], "opinion_index": 0, "case_paths": [ "/ark/241/0300-01" ] }, { "cite": "270 S.W. 968", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "168 Ark. 534", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723457 ], "opinion_index": 0, "case_paths": [ "/ark/168/0534-01" ] }, { "cite": "230 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1700161 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/230/0622-01" ] } ], "analysis": { "cardinality": 679, "char_count": 14402, "ocr_confidence": 0.829, "pagerank": { "raw": 1.3758988239988216e-07, "percentile": 0.6394457746378264 }, "sha256": "4072783db509343b8c8a645dd590315c863fc87bdb81c0578e7a35abd4c7a707", "simhash": "1:2247ce0c7bdf1ca7", "word_count": 2543 }, "last_updated": "2023-07-14T14:44:30.788798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Harris ULMER v. STATE of Arkansas" ], "opinions": [ { "text": "John A. Fogleman, Justice.\nOn 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:\nI. The trial court erred in modifying defendant\u2019s instruction number three as tendered and subsequently giving the modified version in the instructions to the jury.\nII. 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.\nIII. 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.\nIV. The evidence as elicited at the trial is insufficient to sustain the jury\u2019s verdict of murder in the first degree.\nAt 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.\nThere 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\u2019s 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\u2019s 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\u2019s 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\u2019s sister when shot, and Ulmer fired the shot at a \u201cdownward angle\u201d; the shot that caused decedent\u2019s death entered his right chest and went downward and posteriorly, indicating that it came from above and the right of the victim\u2019s head; Ulmer\u2019s 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.\nWhatever 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.\nWe find no error in the court\u2019s modification of appellant\u2019s requested instruction No. 3. As offered, the instruction read:\nIt 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.\nAs modified and given, it read:\nIt 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.\nAppellant\u2019s objection to the instruction as given was a general one, which did not mention the ground now argued. In the first place, we do not agree that the court\u2019s 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 tnough 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\u2019s consideration of \u201csimilar communications\u201d or \u201cnon-verbal aggressive acts.\u201d\nDuring the opening argument on behalf of the state, appellant\u2019s trial counsel (not the same attorney representing him on this appeal) objected to the following statement by a deputy prosecuting attorney:\nMR. HAMNER:\n. . . Well, Mr. Rosteck asked them, \u201cMy goodness, didn\u2019t you have time to take that knife out of his pocket on the way to the hospital?\u201d What did she say? She said, \u201cMy husband was dying. I didn\u2019t think about it.\u201d\nMR. ROSTECK:\nNow, if the Court please, I did not say that and I object to him making an inference that I even suggested she took a knife out of her husband\u2019s pocket and I don\u2019t like it.\nIn the closing argument the following occurred:\nMR. ANDERSON:\n. . . He jumped on him a third time. He said, \u201cI want to know, it\u2019s important, what was it? You remember, I got up and objected; badgering the witness. He had answered, he had said he didn\u2019t know.\nMR. ROSTECK:\nIf the Court please, I want to object, now. I know that this Court knows and the jury knows that when Alex testified on that thing he first told me he was sitting on the ground and I asked him and he said, \u201cYeah.\u201d I don\u2019t want him misrepresenting the facts here. I am getting tired of this.\nMR. ANDERSON:\nWell, I was not misrepresenting the facts. I am sure they will agree. May I continue, Your Honor?\nTHE COURT:\nGo ahead. I think the jury can remember what he testified to.\n* # *\nMR. ANDERSON:\n. . . 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.\nMR. ROSTECK:\nIf 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.\nMR. ANDERSON:\nI heard specific mention, Your Honor, of a knife specifically described as a knife, specifically talked about a blade of a knife.\nTHE COURT:\nI don\u2019t recall anything like that, but go ahead.\nThe record discloses that appellant\u2019s 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:\nI don\u2019t think he would have taken time. My husband was dying. He wouldn\u2019t have took time to search him.\nAlex 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 entrance to the service station building facing and talking to Tiny Smith, who had later returned to the station and was seated when Ulmer came out the door with his gun in his hand, walked three steps, placed the gun \u201cin\u201d Paul\u2019s ribs and shot him. On cross-examination this witness was asked to tell what happened and repeated virtually the same version that he had previously given. On a detailed cross-examination as to the position of the two chairs in relation to each other and to other objects, Alex admitted that he might have been mistaken as to the presence of an ice machine on the day of the shooting. Later appellant\u2019s counsel again inquired whether Paul was sitting down when shot, and Alex clearly responded that he was, after which the cross-examiner commenced a new course of examination as to the position and activities of Paul Guajardo and Tiny Smith when Ulmer came out with his pistol. When the witness answered detailed questions as to the position of Tiny Smith, appellant\u2019s counsel asked the witness if he was as sure about that as he was about anything else, provoking a deputy prosecuting attorney to object that the witness had stated he was \u201cpretty sure,\u201d that he did not know for sure and that the cross-examiner was badgering the witness. Thereafter, the court made an inquiry of the witness and appellant\u2019s counsel continued an even more extensive cross-examination of the witness. During the cross-examination, the examiner had previously asked the witness if he were as positive that Paul was sitting as he was about anything else and in questioning the witness about Paul\u2019s or Mrs. Smith\u2019s position stated \u201cThis will be important,\u201d \u201cI want you to be sure about this,\u201d and \u201cWell, now, I am confused and I am sure the jury is, too. It\u2019s important to this defendant as to where she was located, Judge.\u201d\nIn her testimony on direct examination Mrs. Smith said that her brother, Harris Ulmer, went into the service station building, came out and said to his wife who was sitting near the door, \u201cLet\u2019s get the hell out of here.\u201d When asked if Ulmer said any more to his wife, the witness answered:\nHe didn\u2019t say any more to her at that time. She had her purse and they was ready to walk off and, so Paul, he taken a couple of steps toward her, and he still had his hand in his pocket, and fumbling around, and he, it looked to me like a knife that he had pulled out of his pocket, and it looked like the blade was open, and when he taken those two steps forward, why, Tootsie looked around, and he had his pistol down between his belt and his shirt here (demonstrating), and it just automatically came out.\nLater, but still on direct examination, the following questions and answers are recorded:\nQ. Now, if you were there, and you said Paul took a step or two, that would put him right more or less in this angle in front of you, would it not?\nA. Yes, sir.\nQ. Is that right?\nA. Yes, sir.\nQ. Did you have a good view to his right pocket?\nA. Yes, sir.\nQ. You did. I want you to be sure, now, Tiny, because it\u2019s very important. You said you saw Paul with his hand in his pocket fumbling around?\nA. Yes, sir.\nQ. Are you sure that you saw what you think or you say was a knife, that you saw in his pocket?\nA. Yes, sir, because he pulled it out and it looked like I could see, I would say, that much (indicating) of the blade.\nQ. Did he ever pull it all of the way out of his pocket?\nA. To the best of my knowledge, no.\nQ. He didn\u2019t, but he pulled it out enough that you could see what it was?\nA. Yes, sir.\nQ. And at that instant what did your brother do? What did Tootsie do?\nA. You mean, after he shot?\nQ. No. After he pulled his knife.\nA. That\u2019s when he looked around and he seen that he pulled something out of his pocket, because\u2014\nQ. (Interposing) You don\u2019t know what Tootsie saw. What did Tootsie do?\nA. That\u2019s when he shot.\nWhatever deviation there was from the testimony and from the occurrences taking place during the examination of Mrs. Smith, the argument was not so devoid of evidentiary foundation as to justify the declaration of a mistrial. Appellant did not move for a mistrial, and the circuit court reminded the jury just before it retired that the arguments of the attorneys were not evidence, adding:\nIt\u2019s up to you to remember what the testimony was in the case, and you are instructed that as far as evidence in the case, there is no indication that the knife actually was out. I think there was some rebuttal testimony going to one of the witnesses credibility regarding the knife being out, but that is not to be considered as evidence in the case, only goes to the credibility of the witness.\nThe trial judge was in a better position to judge the effect of the arguments than anyone else, and his admonition to the jury having been given without objection by anyone and without any request for any other action, we cannot say that any prejudicial error was committed.\nAppellant contends that the circuit judge erred in permitting Deputy Sheriff Comer Johnson and Chief Deputy Prosecuting Attorney Robert Brown to testify orally, in rebuttal, about statements made to them by Evonne (Tiny) Smith, appellant\u2019s sister, which were contradictory of her testimony as a witness for appellant, without introducing written statements given these officials by this witness. Appellant argues here that this violated the best evidence rule. No such objection was made in the trial court. As a matter of fact, appellant\u2019s objection to introduction of written statements made by this witness was sustained by the circuit judge simply because the statements had not been identified by her. Appellant is in no position to raise the question now argued by him for the first time on appeal.\nWe find no reversible error and affirm the judgment.\nIn trials taking place after December 31, 1971, we do not consider any general objection to a jury instruction. See Rule XIII of Uniform Rules for Circuit and Chancery Courts, adopted by per curiam order of December 31, 1971.\nAnother deputy prosecuting attorney.", "type": "majority", "author": "John A. Fogleman, Justice." } ], "attorneys": [ "William C. McArthur, for appellant.", "Ray Thornton, Atty. Gen., by: Jay N. Tolley, Asst. Atty., Gen., for appellee." ], "corrections": "", "head_matter": "Harris ULMER v. STATE of Arkansas\n5719\n484 S.W. 2d 691\nOpinion delivered September 25, 1972\nWilliam C. McArthur, for appellant.\nRay Thornton, Atty. Gen., by: Jay N. Tolley, Asst. Atty., Gen., for appellee." }, "file_name": "0106-01", "first_page_order": 130, "last_page_order": 139 }