{ "id": 1898937, "name": "Jerry Lee ALLEN v. STATE of Arkansas", "name_abbreviation": "Allen v. State", "decision_date": "1992-09-14", "docket_number": "CR 92-94", "first_page": "384", "last_page": "388", "citations": [ { "type": "official", "cite": "310 Ark. 384" }, { "type": "parallel", "cite": "838 S.W.2d 346" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "309 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906098 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0228-01" ] }, { "cite": "292 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871399 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "427" }, { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/ark/292/0421-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "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": "304 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880874 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0509-01" ] }, { "cite": "111 S. Ct. 1884", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6224653 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/500/0391-01" ] }, { "cite": "478 U.S. 570", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210041 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/478/0570-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "357 U.S. 513", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164109 ], "year": 1958, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/us/357/0513-01" ] }, { "cite": "111 S.Ct. 2491", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 1108013 ], "year": 1991, "pin_cites": [ { "page": "2497", "parenthetical": "quoting Speiser v. Randall, 357 U.S. 513, 524 (1958)" } ], "opinion_index": 0, "case_paths": [ "/us/501/0624-01" ] }, { "cite": "481 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217454 ], "year": 1987, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/us/481/0497-01" ] }, { "cite": "474 U.S. 254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203718 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/474/0254-01" ] }, { "cite": "488 U.S. 75", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494770 ], "year": 1988, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/us/488/0075-01" ] }, { "cite": "490 U. S. 858", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605560 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/0858-01" ] }, { "cite": "303 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882792 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0462-01" ] }, { "cite": "293 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869795 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "101" }, { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ark/293/0088-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 0 } ], "analysis": { "cardinality": 553, "char_count": 8729, "ocr_confidence": 0.914, "pagerank": { "raw": 2.0322857112948437e-07, "percentile": 0.7467373580467432 }, "sha256": "abf9067295aafc9b2a74a2473dd42da878dc6f47de9288c3f2213571b5c56dbf", "simhash": "1:f3efa084a641cfba", "word_count": 1496 }, "last_updated": "2023-07-14T21:02:16.191716+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jerry Lee ALLEN v. STATE of Arkansas" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nJames Lee Allen, appellant, was charged with capital murder. Under the capital murder statute, Ark. Code Ann. \u00a7 5-10-101 (Supp. 1991), there are two types of capital murder. One is the premeditated and deliberate killing of a person, and the other is the killing of a person in the course of one of several enumerated felonies. Appellant was charged only with premeditated and deliberate capital murder. This kind of premeditated capital murder charge includes the lesser charge of purposeful first degree murder. Appellant was not charged with the other kind of capital murder, often termed felony-murder, but even so, and over his objection, the trial court gave a first degree felony-murder instruction. He was convicted of \u201cfirst degree murder.\u201d The verdict does not reflect whether the jury found him guilty of first degree premeditated murder or first degree felony-murder. It only reflects a finding of guilty of \u201cfirst degree murder.\u201d Thus, appellant may have been convicted of first degree felony-murder, a crime with which he was never charged.\nIn Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), the accused was charged only with the premeditated sort of capital murder. At trial, evidence of a felony during the course of the killing was introduced and over the accused\u2019s objection the trial court gave a felony-murder instruction. In holding this was error, we said:\nThere are different elements of proof to these charges. According to the information, the state had to prove Ward acted with premeditation and deliberation and killed two or more people. As the jury was instructed, the state did not have to prove intent \u2014 it only had to prove that the murders occurred during the course of the felony.\nId. at 101, 733 S.W.2d at 7.\nThe same reasoning applies to this case, and, just as in the cited case, the jury may have convicted appellant of felony-murder. The conviction of a person for a crime with which he was never charged constitutes a clear violation of that person\u2019s constitutional right to due process. Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).\nSome constitutional rights are so basic to a fair trial that their violation \u201ccan never be treated as harmless.\u201d Gomez v. United States, 490 U. S. 858 (1989). Examples are the right to counsel, see Penson v. Ohio, 488 U.S. 75, 88 (1988), and the right for a grand jury proceeding to be free of racial discrimination. Vasquez v. Hillery, 474 U.S. 254 (1986). In Pope v. Illinois, 481 U.S. 497, 502 (1987), the opinion of the court states that the harmless error inquiry is appropriate only when the trial was not fundamentally unfair. Quite probably one\u2019s right to be informed of a charge is that type of fundamental right that cannot be reviewed for harmless error since the right to notice of a charge is \u201cso rooted in the traditions and conscience of our people as to be ranked as fundamental.\u201d Schad v. Arizona, _ U.S _, 111 S.Ct. 2491, 2497 (1991) (quoting Speiser v. Randall, 357 U.S. 513, 524 (1958)). Still, some constitutional rights are subject to the harmless error rule of Chapman v. California, 386 U.S. 18 (1967). See, e.g., Rose v. Clark, 478 U.S. 570 (1986). However, we are not required to decide whether this case comes within that class of cases that might be subject to the harmless error review, because, even if it should be, we could not hold beyond a reasonable doubt that the error did not contribute to the verdict. See Yates v. Evatt, 500 U.S. _, 111 S. Ct. 1884 (1991). Thus, under either standard we must reverse.\nAppellant argues that we must reverse and dismiss, rather than reverse and remand, because there is insufficient evidence to convict him of first degree murder either by purpose or felony-murder. We decline to dismiss the case, but because of the argument, we necessarily set out the facts.\nOn the evening of November 16, 1990, appellant, Sam Harris, and John Reed were drinking beer in the parking lot of Catt\u2019s Liquor Store in Turrell. Sam Harris and John Reed were sitting in Sam Harris\u2019 car while the appellant was a short distance away talking to a friend. A pickup truck struck Harris\u2019 car and, without stopping, was driven away. Sam Harris started his car and began to chase the pickup truck. Both vehicles circled the block and, when they came back by the parking lot, appellant jumped in Sam Harris\u2019 car. Two other cars joined in the chase.\nShortly after the chase began, Sam Harris was able to read the numbers on the pickup truck\u2019s license plate and was ready to stop the chase. Appellant said, \u201cLet\u2019s go get that truck,\u201d and the chase continued. A short distance away, the pickup truck was driven off the road and into a field and then in circles around the field. Sam Harris and the drivers of the other two chase cars stopped their vehicles near the field. Sam Harris knew that appellant had a pistol. Appellant left the Harris car and walked toward the pickup. According to appellant\u2019s statement he fired six shots at the rear window of the pickup truck, but he contends he only meant to scare the driver. One of the bullets struck the victim, Robert Harris, in the back of the head and immediately killed him. The appellant hid his pistol, but later told the police where it was and they recovered it.\nOne\u2019s intent to commit murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). Here, appellant said, \u201cLet\u2019s go get that truck\u201d as they were chasing it. He got out of the car with a. 3 8 caliber pistol and walked toward the pickup truck. He fired six shots from the comparatively large size pistol. One of the shots struck the victim above and behind his left ear and immediately killed him. These facts were sufficient for the jury to infer purposeful murder. Although appellant said he did not intend to kill the victim, but instead only intended to scare him, the jury was free to reject his testimony as false. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Thus, we do not dismiss the charge of premeditated murder, but rather remand it for a new trial.\nThe felony-murder charge never was filed, and consequently we can neither remand nor dismiss it. However, since we are remanding the premeditated murder charge that was filed, and since the State might seek to amend the information to include a felony-murder count, we will discuss the issue. The proof showed that appellant fired a pistol when he killed the victim. At trial, the State contended that firing the pistol constituted the underlying felony of aggravated assault, and on that basis the trial court gave the felony-murder instruction. This was a misconstruction of the felony-murder statute. Under the first degree felony-murder statute, \u201ca person commits murder in the first degree if. . .he commits... a felony, and in the course of and in the furtherance of the felony . . . causes the death of any person . . . .\u201d Ark. Code Ann. \u00a7 5-10-102 (Supp. 1991) (emphasis supplied). The assault in this case was only in the furtherance of the murder, not of some other felony. In Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), we focused on the emphasized language in the corresponding capital murder provision. There, the defendant chased one of his victims into the victim\u2019s house and killed him. The State proceeded on a felony-murder theory, using burglary as the underlying felony to support the conviction. In reversing we wrote, \u201c[F]or the phrase \u2018in the course of and in furtherance of the felony\u2019 to have any meaning, the burglary must have an independent objective which the murder facilitates.\u201d Id. at 427, 731 S.W.2d at 759. In sum, under the proof, the appellant would not be guilty of felony-murder even if he were so charged.\nAppellant next argues that the trial court erred in refusing to give his proffered instruction on manslaughter that \u201che caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse.\u201d The trial court ruled correctly in refusing to give the instruction because there was no rational basis for giving it. See Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992).\nAppellant\u2019s brief contains other points of appeal that are not necessary for us to discuss because they were not raised below, or the required proffers were not made on evidentiary rulings, or the alleged errors are not likely to arise again upon retrial.\nReversed and remanded.", "type": "majority", "author": "Robert H. Dudley, Justice." } ], "attorneys": [ "Donald A. Forrest, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, for appellee." ], "corrections": "", "head_matter": "Jerry Lee ALLEN v. STATE of Arkansas\nCR 92-94\n838 S.W.2d 346\nSupreme Court of Arkansas\nOpinion delivered September 14, 1992\nDonald A. Forrest, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, for appellee." }, "file_name": "0384-01", "first_page_order": 424, "last_page_order": 428 }