{ "id": 1445676, "name": "Bob SOLOMON v. STATE of Arkansas", "name_abbreviation": "Solomon v. State", "decision_date": "1996-01-22", "docket_number": "CR 95-548", "first_page": "178", "last_page": "187", "citations": [ { "type": "official", "cite": "323 Ark. 178" }, { "type": "parallel", "cite": "913 S.W.2d 288" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "260 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616826 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0201-01" ] }, { "cite": "322 Ark. 157", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447570 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0157-01" ] }, { "cite": "319 Ark. 454", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453581 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0454-01" ] }, { "cite": "321 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449589 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0046-01" ] }, { "cite": "306 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900929 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0193-01" ] }, { "cite": "264 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668726 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "226" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0223-01" ] }, { "cite": "289 Ark. 224", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875441 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0224-01" ] }, { "cite": "316 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907810 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0153-01" ] }, { "cite": "262 Ark. 680", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675911 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0680-01" ] }, { "cite": "906 S.W.2d 677", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1449592, 1449516 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0635-01", "/ark/321/0658-01" ] }, { "cite": "321 Ark. 635", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449592 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0635-01" ] }, { "cite": "13 Ark. App. 213", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140181 ], "weight": 4, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/13/0213-01" ] }, { "cite": "470 U.S. 1085", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330208, 11329984, 11330983, 11330696, 11330793, 11331149, 11330606, 11330896, 11330321, 11330417, 11330133, 11330041, 11330524 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/470/1085-04", "/us/470/1085-01", "/us/470/1085-12", "/us/470/1085-09", "/us/470/1085-10", "/us/470/1085-13", "/us/470/1085-08", "/us/470/1085-11", "/us/470/1085-05", "/us/470/1085-06", "/us/470/1085-03", "/us/470/1085-02", "/us/470/1085-07" ] }, { "cite": "670 S.W.2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1984, "opinion_index": 0 }, { "cite": "282 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740879 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0563-01" ] }, { "cite": "314 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912790 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0247-01" ] }, { "cite": "322 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447466 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "55" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0051-01" ] }, { "cite": "320 Ark. 67", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451274 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0067-01" ] } ], "analysis": { "cardinality": 831, "char_count": 16474, "ocr_confidence": 0.895, "pagerank": { "raw": 2.0615829611913598e-07, "percentile": 0.7566149609494608 }, "sha256": "5fdb8305d40e8c3f788e7225d3b8a910e011fd3527b83d0024e8484b8aa50bc2", "simhash": "1:63ee9b46726c9932", "word_count": 2712 }, "last_updated": "2023-07-14T22:17:29.924838+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bob SOLOMON v. STATE of Arkansas" ], "opinions": [ { "text": "Donald Corbin, Justice.\nAppellant, Bob Solomon, appeals the judgment of the Pope County Circuit Court convicting him of the first-degree murder of his spouse, Janice Solomon, and sentencing him to imprisonment for forty years. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant admitted that he shot the victim, but argued that the shooting was accidental. Appellant raises five arguments for reversal, among them that it was error for the trial court to refuse to exclude three of the state\u2019s witnesses from the courtroom pursuant to the witness-sequestration rule, Ark. R. Evid. 615. We agree and reverse for a new trial. We find appellant\u2019s other arguments are meritless, but discuss them for the benefit of the trial court upon retrial.\nWitness-sequestration rule\nAt the commencement of the trial, the trial court ruled that state\u2019s witnesses, Jennifer Patty, Peggy Barker, and Teresa Patty, the victim\u2019s daughters, could remain in the courtroom despite appellant\u2019s invocation of the witness-sequestration rule. Rule 615. The trial court stated that the victim\u2019s daughters were exempted from the witness-sequestration rule by Ark. R. Evid. 616, which provides that the victim of the crime, as well as the parent, guardian or custodian of a minor victim, has the right to be present during the trial notwithstanding Rule 615. As the state concedes, the trial court ruled in error since none of the victim\u2019s daughters was the victim of the murder and no minor victim was involved. See Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).\nThe state argues that the trial court\u2019s error does not warrant reversal, however, because appellant has failed to demonstrate prejudice. Appellant argues he was prejudiced by the fact that the victim\u2019s daughters were allowed to listen to the other testimony, thereby allowing them a clear opportunity to shape their testimonies to match the other witnesses. Prejudice is not presumed and we do not reverse absent a showing of prejudice. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).\nRule 615 expressly provides that \u201cthe court shall order witnesses excluded so that they cannot hear the testimony of other witnesses[.]\u201d We have stated that the purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and \u201c \u2018to prevent the possibility of one witness\u2019s shaping his or her testimony to match that given by other witnesses at trial.\u2019 \u201d King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). The state called thirteen witnesses in all, six of whom testified prior to the victim\u2019s daughters. The victim\u2019s daughters were not recalled to the stand.\nBriefly summarized, the testimony of the state\u2019s six witnesses who testified before the victim\u2019s daughters is as follows. Attorney William F. Smith first testified that the victim was his former client, that part of his practice consisted of divorce cases, and that, approximately one month prior to the shooting, the victim inquired about his retainer for a divorce action and stated that she might be coming to see him. The next four witnesses, Nurses Paula McAlister and Becky McCain and Drs. Roxanne Marshall and Charles Woodrow Jones, Jr., each testified to attending the victim at St. Mary\u2019s Hospital emergency room in Russellville, where the victim was taken by appellant after the shooting. The sum of these witnesses\u2019 testimonies was that the victim was alert and that she stated that she and her husband had argued about a divorce, that her husband had shot her, and that it was no accident. Nurse McAlister also testified that the victim stated that she wanted to see her daughters. The state\u2019s sixth witness, Dr. Mark Myers, testified as to the details of the victim\u2019s gunshot injury which he observed as he performed surgery on the victim at St. Mary\u2019s. The victim died during the surgery.\nJennifer Patty, the victim\u2019s twenty-two-year-old daughter, next testified that she went to the emergency room because appellant called and told her that she was needed there, and that he and the victim were out target shooting when the victim stepped in the way and he shot her. Ms. Patty testified that her sister, Peggy, met her at the emergency room later on, and that they went to the waiting room where they found appellant. Ms. Patty testified that she heard appellant tell Pope County Sheriff Jay Winters in the waiting room that he had told the victim he was \u201cgonna blow her head off.\u201d\nPeggy Barker, the victim\u2019s eldest daughter, next testified that when she went to the emergency room one of the nurses let her see the victim. Ms. Barker stated that the victim took her hand and told her to \u201ctell them\u201d that she and appellant had been arguing and that appellant had shot her on purpose. Ms. Barker testified that she remembered talking to Pope County Sheriffs Office Investigator James Hardy after the shooting and telling him that the victim had told her that appellant had shot her on purpose. Ms. Barker testified that appellant had told her that he had argued with the victim over a credit problem. Ms. Barker testified that she never told appellant\u2019s counsel that she knew appellant would not intentionally kill the victim. Ms. Barker also testified as regards numerous other matters that were not addressed by any witness who testified before her.\nTeresa Patty, the victim\u2019s twenty-three-year-old daughter, next testified that, shortly after the shooting, appellant told her that he and the victim were arguing about a credit problem, that he got out the gun, that they were \u201carguing over the gun,\u201d and that he shot her, but had not meant to. Ms. Patty testified that she was the closest of her sisters to appellant. Ms. Patty\u2019s testimony did not reveal whether she was present at St. Mary\u2019s Hospital on the day of the shooting.\nWe find appellant has demonstrated prejudice. This case was decided by the jury upon the conflicting testimonies presented as regards the issue of appellant\u2019s intent when he shot the victim. It illustrates the need for the witness-exclusion rule to prevent the possibility of any of the victim\u2019s daughters from shaping her testimony to that of a preceding witness. King, 322 Ark. 51, 907 S.W.2d 127; see also Fite, 13 Ark. App. 213, 682 S.W.2d 457 (decided under the presumed-prejudice rule of law).\nAccordingly, we reverse the judgment of conviction and remand for a new trial. The following points of asserted error are addressed since they are likely to arise on retrial.\nSufficiency of evidence of intent\nAppellant argues that the evidence was insufficient to prove that he acted with the purpose of causing the victim\u2019s death. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id.\nAppellant testified that he shot the victim as they were driving in their 1984 Ford pickup truck on a state highway near Moreland on the afternoon of July 17, 1993. The evidence showed that appellant and the victim were seated as driver and passenger, respectively, when appellant fired a single bullet into the victim\u2019s chest with a Smith and Wesson semi-automatic nine millimeter caliber firearm. Appellant testified that, at the time of the shooting, he and the victim were arguing about a credit problem, that the victim had become very upset, and, that, with one hand, he retrieved the weapon, which he knew to be loaded, from the console between their seats to put the weapon beyond the victim\u2019s reach. Appellant testified that the victim simultaneously grabbed the weapon\u2019s barrel and it accidentally discharged. As noted above, appellant\u2019s story was contradicted by the testimony of the victim\u2019s emergency-room health-care providers who stated that she told them that appellant shot her on purpose.\nResolution of the conflicting versions of these facts rested with the jury. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978). Clearly, the jury did not believe appellant\u2019s version. There is substantial evidence to support the conviction for first-degree murder.\nPrior bad acts of the victim\nAppellant also argues that proffered evidence of the victim\u2019s character, by testimony of specific instances of her prior violent conduct toward him, was erroneously excluded. Our review is limited to the proffered cross-examination testimony of state\u2019s witness, Sheriff Winters, that he heard appellant tell another law enforcement officer that the victim had pulled a gun on him during their previous arguments and, once, had gotten mad and almost shot off his ear. Ark. R. Evid. 103; Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Appellant asserts the excluded testimony was relevant to his defense of accident. Because appellant\u2019s defense was accident, rather than self-defense, the trial court excluded testimony of the victim\u2019s prior bad acts. Appellant argues that the proffered testimony was admissible as evidence of a pertinent trait of the victim\u2019s character, in light of his defense of accident, pursuant to Ark. R. Evid. 404(a), and as evidence of other acts by the victim that were relevant to proof of his intent on the day of the shooting, pursuant to Ark. R. Evid. 404(b). We need not address this argument on its merits. Even assuming Sheriff Winters\u2019s excluded evidence was admissible under Rule 404, it was not admissible under Ark. R. Evid. 405, which governs methods of proving character.\nRule 405 generally limits proof of character to reputation or opinion testimony. However, pursuant to Rule 405(a), a character witness may testify on cross-examination as to relevant specific instances of conduct. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). The abstract, however, reveals no evidence from Sheriff Winters, on direct examination, regarding the victim\u2019s character. Hence, the proffered evidence was not admissible under Rule 405(a) as it was beyond the scope of cross-examination. Ark. R. Evid. 611.\nRule 405(b) also permits proof of character by specific instances of conduct in cases in which character or a trait of character is an essential element of a charge, claim or defense. Such a character trait must be \u201can operative fact which under substantive law determines the rights and liabilities of the parties.\u201d McClellan v. State, 264 Ark. 223, 226, 570 S.W.2d 278, 280 (1978). Appellant does not satisfy this standard because the victim\u2019s violent character was not an essential element of the murder charge or of his defense of accident. As the trial court correctly ruled, had appellant\u2019s defense been self-defense, the result might have been otherwise. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). Appellant sought to use the proffered testimony circumstantially rather than as a direct substantive issue, and, therefore, it was not admissible under Rule 405(b). McClellan, 264 Ark. 223, 570 S.W.2d 278.\nSuppression of appellant\u2019s pre-arrest statement\nSheriff Winters testified: \u201c[Appellant] said that he pointed the gun at her and said, \u2018I\u2019m going to blow your head off; but that he didn\u2019t mean it and that the gun just went off.\u201d Appellant argues his statement should have been suppressed because it was given before the Miranda warnings were administered. The trial court ruled that the testimony was admissible because appellant\u2019s statement was voluntarily given under circumstances that did not constitute a custodial situation that required prior Miranda warnings.\nAppellant testified that he did not make the challenged statement.\nThe Miranda warnings were intended to inhibit abuse of the federal constitutional Fifth Amendment right against self-incrimination of a person by reason of custodial interrogation by law enforcement officers. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995). \u201cIn custody\u201d means a person who is deprived of his freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id. In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable man in the suspect\u2019s shoes would have understood his situation. State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995).\nOn appeal, we make an independent determination of the voluntariness of a confession. Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). We do not reverse the trial court, absent a finding of clear error, recognizing that conflicts in the testimony are for the trial court to resolve. Id. Here, the record shows that appellant made the challenged pre-arrest statement in the hospital\u2019s waiting room after Winters had twice advised appellant that he was not there to take any statements and just wanted to locate and secure the weapon, and that, after the challenged statement was made, Winters left appellant unattended in the waiting room to locate the weapon, then returned to appellant in the waiting room approximately ten minutes later and verbally advised appellant of his Miranda rights. On these facts, we are not persuaded that the trial judge\u2019s ruling was clearly against the preponderance of the evidence.\nMistrial\nAppellant argues it was error to refuse his three motions for mistrial based upon the emotional displays of the victim\u2019s daughters in the presence of the jury. The first two motions related to incidents that occurred because of the Rule 615 violation and therefore will not arise on retrial.\nThe third motion was made on the third day of trial, during an in-camera proceeding that was conducted when the court reconvened following its lunch break after closing arguments. Appellant moved for a mistrial on the ground that the victim\u2019s daughters had approached the jury in close proximity as they were escorted by the bailiff from the courthouse to a van to conduct them to lunch, and had created a scene by screaming \u201cI want my momma\u201d and crying. The bailiff, when questioned by the trial court, corroborated appellant\u2019s description of the scene. The bailiff also stated that he had seen no one trying to speak to the jury and that he had hurried the jury into the van. The bailiff stated that he had not seen the victim\u2019s family at the scene of the disruption before, but had seen appellant\u2019s family there every morning. The trial judge denied the motion, but stated that he would admonish the families not to engage in similar displays.\nAppellant then informed the trial judge that two or three other bystanders, including Mr. John Lynch, who were friends and relatives of appellant, had observed the lunch scene and would testify in accordance with the bailiff. Subsequently, appellant filed a motion for a new trial and attached Mr. Lynch\u2019s affidavit that he had observed two of the victim\u2019s daughters \u201claughing and snickering and making light of the situation\u201d after the bailiff had left with the jury.\nWe have held that emotional outbursts by the relatives of murder victims are not unusual and are difficult to control. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). The trial court exercises a wide latitude of discretion in the control of the trial and resorts to the drastic remedy of a mistrial as a last resort. Id. The record, as abstracted, fails to show that appellant obtained any cautionary instruction to the jury. The only indication that the emotional display was extreme or was orchestrated was Mr. Lynch\u2019s affidavit. Clearly, the trial judge was in a superior position to evaluate the prejudicial effect of the display upon the jury and to evaluate the credibility of the witnesses, including Mr. Lynch, regarding the lunchtime incident. We conclude no abuse of discretion was committed by the trial court in denying appellant\u2019s third motion for mistrial.\nThe judgment is reversed on the basis of the Rule 615 violation and remanded for retrial.", "type": "majority", "author": "Donald Corbin, Justice." } ], "attorneys": [ "Stuart Vess, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Bob SOLOMON v. STATE of Arkansas\nCR 95-548\n913 S.W.2d 288\nSupreme Court of Arkansas\nOpinion delivered January 22, 1996\nStuart Vess, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0178-01", "first_page_order": 208, "last_page_order": 217 }