{ "id": 1882715, "name": "Austin E. SALLEY v. STATE of Arkansas", "name_abbreviation": "Salley v. State", "decision_date": "1990-10-01", "docket_number": "CR 90-116", "first_page": "278", "last_page": "283", "citations": [ { "type": "official", "cite": "303 Ark. 278" }, { "type": "parallel", "cite": "796 S.W.2d 335" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "246 Ark. 728", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604009 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0728-01" ] }, { "cite": "274 Ark. 346", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1754954 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0346-01" ] }, { "cite": "591 S.W.2d 679", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1979, "opinion_index": 0 }, { "cite": "267 Ark. 904", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719776 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0904-01" ] }, { "cite": "263 Ark. 355", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672645 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0355-01" ] }, { "cite": "291 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872625 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0504-01" ] }, { "cite": "293 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869692 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0175-01" ] }, { "cite": "299 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888384 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0474-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-3-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "298 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889838 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0484-01" ] }, { "cite": "301 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885524 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0235-01" ] }, { "cite": "775 S.W.2d 896", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1886793, 1886875, 1886726 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0032-01", "/ark/300/0029-01", "/ark/300/0001-01" ] }, { "cite": "300 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886726 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0001-01" ] }, { "cite": "284 Ark. 21", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878690 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/284/0021-01" ] } ], "analysis": { "cardinality": 521, "char_count": 7921, "ocr_confidence": 0.884, "pagerank": { "raw": 5.021070364868199e-07, "percentile": 0.9365096189005614 }, "sha256": "795c708c30b2033af9d6876c6a7cd31e3d5b5b72914257665ffd8a6fa6d1dfb2", "simhash": "1:51cdaf2362367a10", "word_count": 1303 }, "last_updated": "2023-07-14T18:41:20.399175+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Austin E. SALLEY v. STATE of Arkansas" ], "opinions": [ { "text": "Otis H. Turner, Justice.\nThe appellant was charged with burglary and attempt to commit capital felony murder. Following a jury trial, he was convicted and sentenced as an habitual criminal to 60 years imprisonment. From that conviction and sentence, this appeal is taken. (The appellant was also sentenced to 10 years on the burglary charge, but that conviction and sentence is not an issue on this appeal.)\nFor reversal, the appellant first contends that the evidence is insufficient to sustain a conviction for attempted capital murder, and, second, that the trial court committed reversible error by permitting police officers to give \u201copinion\u201d testimony. We find no reversible error and affirm.\nAn uninvolved third party observed the appellant and another person in an alley. Their conduct, appearing suspicious, prompted the third party to call the Little Rock police. When the police arrived, the informant pointed out the two individuals who were some distance down the street. The officers, in their patrol car, approached the suspects. Upon arrival, Officer Jeffrey Yant got out of the vehicle and directed the two individuals \u2014 one of whom he recognized as Austin Salley, the appellant\u2014to move up against a nearby wall. Salley then reached inside his pants, produced a handgun, and pointed it at Officer Yant. He fired once, missing the officer. Yant took evasive action by diving backwards and rolling to the ground. While Yant was on the ground, the appellant fired two more shots at him, neither of which hit the mark. Salley then ran away, with Officer James Lesher in pursuit. The appellant fired once more at Officer Lesher, with the officer returning fire, none of the shots hitting either party. Salley, who had been recognized, was subsequently arrested, charged, and tried.\nThe appellant first contends that the state failed to produce any evidence that he acted with premeditation and deliberation in attempting to kill Officer Yant, and was thus entitled to a directed verdict on the attempted capital murder charge.\nA motion for a directed verdict is a challenge to the sufficiency of the evidence. Henson v. State, 300 Ark. 1, 775 S.W.2d 896 (1989). In a challenge to the sufficiency of the evidence, the Supreme Court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, the Supreme Court need only consider evidence in support of the conviction. Id.\nUnder Ark. Code Ann. \u00a7\u00a7 5-3-201 (1987) and 5-10-101 (Supp. 1989), premeditation and deliberation constitute the necessary mental state for the commission of attempted capital murder. Premeditation and deliberation may be inferred from circumstantial evidence. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). Premeditation and deliberation need not exist for any particular length of time and indeed may be formed almost on the spur of the moment. Id.; Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). These elements may also be inferred from the circumstances of the case, such as the character of the weapon used, the manner in which it was used, and the conduct of the accused under all of the circumstances existing. Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987).\nThe circumstances in the present case are similar to those in Shaw v. State and Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978), cases involving convictions for attempted capital felony murder of policemen. The chief distinction between those cases and the appellant\u2019s case is the fact that here the officer was not wounded, while in Shaw and Stout, the officers were seriously injured. Otherwise, the situations are comparable involving attempts by police to stop and question persons engaged in suspicious behavior. In all three cases there was testimony that the accused pointed guns at the officers and fired. Here the appellant fired a total of three shots at Officer Yant.\nFrom the circumstances of the shooting, where the appellant had time in which to decide to fire two additional shots at the policeman \u2014 to say nothing of an extra shot discharged in the direction of Yant\u2019s partner during the chase \u2014 there was certainly substantial evidence from which a jury could infer premeditation and deliberation. See Shaw v. State and Stout v. State.\nThe appellant next contends that it was error to permit the police officers to give opinion testimony. Upon direct examination, both Officer Yant and Officer Lesher were permitted to testify, over the appellant\u2019s timely objection, that they thought the appellant was trying to kill Officer Yant when he fired at him from point-blank range. Officer Yant described the flash of the pistol and said that he was \u201clooking right down the muzzle.\u201d Officer Lesher testified that the gun was pointed at Officer Yant when the first shot was fired from a distance of 4 to 6 feet.\nCounsel for the appellant objected on the grounds that the state was seeking \u201can opinion.\u201d The prosecution agreed that she was indeed eliciting opinion testimony.\nArkansas Rules of Evidence Rule 701 permits opinion testimony of a lay witness when the opinions are rationally based on the \u201cperception\u201d of the witness and are helpful to a clear understanding of his testimony or a determination of a fact in issue. The testimony of both Officers Yant and Lesher meet the requirements of A.R.E. Rule 701.\nIn Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. App. 1979), an eyewitness to a shooting was permitted to testify that in her opinion the shooting was not accidental as alleged by the defendant. The testimony was approved pursuant to A.R.E. Rule 701. Federal Rules of Evidence Rule 701 has likewise been held to permit such opinion testimony. See United States v. Sheet, 665 Fd.2d 983 (9th Cir. 1982). .\nWe have previously drawn the fine distinction between a permitted opinion which \u201ctouches upon the ultimate issue\u201d and an opinion, not admissible, which \u201ctells the jury what to do.\u201d Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981).\nThe testimony of the officers \u2014 one of them the intended victim \u2014 that a handgun was fired point blank at Officer Yant and that the appellant appeared to be shooting to kill is quite different from an expert utilizing established facts and from those facts making a conclusory statement that the actor was \u201cnegligent\u201d or \u201cguilty of malpractice.\u201d\nArkansas Code Annotated \u00a7\u00a7 5-3-201 and 5-10-101, encompassing the crime of attempted capital felony murder, require an intent to cause death after premeditation and deliberation. The opinion testimony objected to by the appellant deals only with the single element of intent and does not tell the jury to convict; to that extent only it touches upon the ultimate issue. See Gramling v. Jennings; Mathis v. State. The jury is then left to determine the ultimate issue \u2014 whether intent plus premeditation and deliberation are proved to the jury\u2019s satisfaction beyond a reasonable doubt. See McClellan v. French, 246 Ark. 728, 439 S.W.2d 813 (1969).\nAs we find no reversible error, the conviction is affirmed.\nAffirmed.", "type": "majority", "author": "Otis H. Turner, Justice." }, { "text": "Glaze, J.,\nconcurring: Regarding appellant\u2019s second contention, I agree the officers\u2019 opinions were properly admitted under A.R.E. Rule 704 and the rationale set out in Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).", "type": "concurrence", "author": "Glaze, J.," } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, by: Bret Qualls, Deputy Public Defender, for appellant.", "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Austin E. SALLEY v. STATE of Arkansas\nCR 90-116\n796 S.W.2d 335\nSupreme Court of Arkansas\nOpinion delivered October 1, 1990\nWilliam R. Simpson, Jr., Public Defender, by: Bret Qualls, Deputy Public Defender, for appellant.\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0278-01", "first_page_order": 316, "last_page_order": 321 }