{ "id": 1174843, "name": "Harry WARD v. STATE of Arkansas", "name_abbreviation": "Ward v. State", "decision_date": "1981-03-02", "docket_number": "CR 80-182", "first_page": "99", "last_page": "105", "citations": [ { "type": "official", "cite": "272 Ark. 99" }, { "type": "parallel", "cite": "612 S.W.2d 118" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "266 Ark. 506", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720159 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0506-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "257 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720231 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/257/0388-01" ] }, { "cite": "598 S.W. 2d 72", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1712540, 1712548 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0035-01", "/ark/269/0016-01" ] }, { "cite": "269 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712548 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0016-01" ] } ], "analysis": { "cardinality": 563, "char_count": 9892, "ocr_confidence": 0.811, "pagerank": { "raw": 3.857138659154592e-07, "percentile": 0.8998922330993042 }, "sha256": "629b69b7108c7fed4a3389b1b53fd35d3197482bde0d331818e43c917468c2b9", "simhash": "1:4ffec1903a6075c0", "word_count": 1710 }, "last_updated": "2023-07-14T20:44:04.069601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Harry WARD v. STATE of Arkansas" ], "opinions": [ { "text": "John I. Purtle, Justice.\nThe appellant was charged by information on October 3, 1979, of causing the death of Patra Bryant on October 1, 1979. He was tried before a jury on April 24, 1980, and was found guilty of murder in the first degree in violation of Ark. Stat. Arin. \u00a7 41-1502 (Repl. 1977). He was sentenced to life in prison. On appeal he alleges (1) that the court erred in failing to exclude a statement made by him while he was in custody and prior to receiving a Miranda warning; (2) that the court erred in allowing the prosecuting attorney to comment about the appellant\u2019s election to remain silent; and, (3) that the evidence was insufficient to support the verdict.\nWe agree with appellant on his second argument.\nThe facts reveal that Harry Ward and Everett \u201cJiggs\u201d Lincolmfelt had been friends for 40 years prior to October 1, 1979- They resided in rural Monroe County near Indian Bay, Arkansas. In fact, they were neighbors. On October 1, 1979, appellant and \u201cJiggs\u201d Lincolmfelt were out driving around and drinking beer. Along about night the two of them decided to have a fish fry. They purchased a nice enough buffalo for about $5 and went to the home of Patra Bryant for the fish fry. For some reason the fish fry did not come off and appellant was asked to leave and to return in about 45 minutes for the purpose of picking \u201cJiggs\u201d up. When Harry returned to the Bryant home neither \u201cJiggs\u201d nor Patra Bryant were present. He started back to his own home when he noticed the light on at \u201cJiggs\u2019 \u201d house. He drove into the yard and up next to the rear porch where he stopped his vehicle. From this point the testimony is very disputed with the appellant insisting that shortly after he arrived at Lincolmfelt\u2019s home that Lincolmfelt jumped him and beat him over the head with a gun. He alleges that the first thing that Lincolmfelt said to him was, \u201cYou son-of-a-bitch, I\u2019m fixing to kill you.\u201d Appellant alleges he asked \u201cJiggs\u201d what was the matter, and the reply was, \u201cYou have been married to a woman for 35 years that I have loved all my life.\u201d He also testified that Patra Bryant helped Lincolmfelt and that she used a brick to strike him over the head. He stated he was momentarily rendered unconscious and upon regaining the ability to leave he went to his car and obtained a shotgun and fired two shots, one of which killed Patra Bryant. He said he did not know that he had injured anyone and was not aiming at anybody when he fired toward the house.\nThe undisputed evidence shows Patra Bryant was struck at fairly close range with a shotgun blast which almost severed her arm and apparently struck her heart. She died from the shotgun blast immediately. There was a brick with bloodstains on it found inside the house and a pool of blood which was not next to the body of the deceased. Also, appellant had numerous cuts and abrasions about his head. He was hospitalized for a period of time following the incident.\nLincolmfelt\u2019s story differs from appellant\u2019s story in that he claimed the appellant came at him and the deceased with a pistol and fired several times. He stated he took the pistol away from the appellant and \u201cpecked\u201d him on the head with it. He denied that the deceased helped him beat the appellant up. He stated that after he took the pistol from appellant that appellant returned to his car and picked up the shotgun and fired into the house, and that one of the shots struck and killed Patra Bryant. His testimony clearly described the appellant as the aggressor.\nAppellant returned home immediately after the incident at Lincolmfelt\u2019s house and sent his wife to get the constable. The constable, Jack George, arrived at the house of appellant soon thereafter and inquired, \u201cWhat happened?\u201d The appellant replied, \u201cI shot \u2018Jiggs\u2019.\u201d The constable, who was appellant\u2019s son-in-law, told appellant not to make any further statements. No further statements were made by the appellant. The \u201cI shot \u2018Jiggs\u2019 \u201d statement was used at the trial by the prosecution. Also, during the trial the prosecuting attorney openly referred to occasions when appellant refused to discuss the incident. At one time appellant told his attending physician that he would not discuss the matter and the other occasion was when he was taken into custody by the officers and refused to make a statement. The prosecutor in the closing argument mentioned that appellant \u201cdidn\u2019t tell the police officers anything,\u201d and that \u201che didn\u2019t have anything done about the people beating him up.\u201d He further remarked: \u201cMr. Ward didn\u2019t want to talk about the matter. He wanted to talk to his lawyers. He knew he was in trouble. No, he wasn\u2019t going to tell them. No, huh-uh, and there is a very good reason for that because he done wrong. He done wrong, and he knew he had done wrong.\u201d\nThe appellant took the stand in his own behalf and was questioned about all of the matters which the prosecutor argued. The trial court overruled the appellant\u2019s motion in limine in which he tried to prevent the prosecutor from arguing about the appellant\u2019s silence during the closing argument. The court allowed the arguments and the jury returned a verdict of guilty in the first degree and fixed appellant\u2019s punishment at life imprisonment.\nI.\nWe first consider the argument that the trial court erred in allowing the statement \u201cI shot \u2018Jiggs\u2019 \u201d to be introduced into evidence. The Fifth Amendment to the Constitution of the United States prohibits a person from being required to testify against himself. It gives him the right to remain silent but it does not guarantee that he will remain silent. In the present case it is doubtful that appellant was in custody although he had attempted to surrender himself to the constable. When the constable asked what was the matter, he replied, \u201cI shot \u2018Jiggs\u2019.\u201d At the time this statement was made the appellant was in his own home in the presence of his own family and the only officer present was his son-in-law, the constable. The constable never did really take the appellant into custody. He did remind him not to say any more than he had already said. The Miranda warning was set up for the purpose of enforcing Fifth Amendment rights by requiring that certain warnings be given to suspects prior to \u201ccustodial\u201d questioning or interrogation. The Fifth Amendment does not preclude voluntary statements by an accused. Beard v. State, 269 Ark. 16, 598 S.W. 2d 72 (1980). Certainly, we cannot say when the statement is viewed with all of the circumstances that the court\u2019s ruling was against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).\nII.\nAppellant next argues that the prosecutor\u2019s comments made during closing argument concerning his prior silence violated his constitutional rights against self incrimination. The prosecutor reminded the jury that the appellant had refused to make any statement at the time he was arrested and when he went to the doctor. A portion of the prosecutor\u2019s closing argument is:\n... No, he wasn\u2019t going to tell them. No, huh-uh, and there is a very good reason for that because he done wrong. He done wrong, and he knew he had done wrong. * * * He will come before you in the calm and the cool of the courtroom and rationality, and he will surround himself with cloaks and with the constitution and with all its guarantees, and he will present his case to you, ladies and gentlemen of the jury, hoping your verdict will be rendered on sympathy because he claims to have a heart condition of some sort. * * * He will cloak himself with that and tell whatever he wants to because he\u2019s free to say whatever he wants to because he didn\u2019t say anything after it happened and is not liable for that.\nSeveral other similar remarks were made by the prosecuting attorney during the closing argument. We believe these remarks amounted to prejudicial error, and that the case must be reversed on account of the argument of the prosecutor.\nIn the case o\u00ed Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court reversed the conviction because the prosecutor sought to impeach the accused\u2019s testimony by referring to his silence after he was arrested. Mr. Justice Powell, speaking for the majority, stated:\nWe conclude that the use of the defendants\u2019 post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.\nIn reading this opinion we find that some of the questions asked of Doyle were the same questions as those asked of the appellant in the present case. We feel that Doyle is controlling in the present case.\nWe are not unmindful that the appellant made a motion in limine, prior to commencement of closing arguments, in which he sought to prevent the prosecution from making this type of argument. The court reasoned that the appellant had already taken the stand and waived his Fifth Amendment rights and that it would be proper to allow such statements in the closing argument. We think Doyle v. Ohio, supra, is controlling and that the statement should not have been allowed. This constituted prejudicial error. When a motion in limine is overruled, no further objection is needed.\nIII.\nThe third point argued is that the evidence was insufficient to support the verdict. We all know that the standards for sustaining a verdict on appeal is governed by the rule of viewing the evidence in the light most favorable to the appellee. Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979). Since the evidence will no doubt be different in the next trial, we will not deal, further with this argument at this time.\nReversed and remanded.", "type": "majority", "author": "John I. Purtle, Justice." } ], "attorneys": [ "E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.", "Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Harry WARD v. STATE of Arkansas\nCR 80-182\n612 S.W. 2d 118\nSupreme Court of Arkansas\nOpinion delivered March 2, 1981\nE. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.\nSteve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee." }, "file_name": "0099-01", "first_page_order": 121, "last_page_order": 127 }