{ "id": 5369532, "name": "Brandon HARDMAN v. STATE of Arkansas", "name_abbreviation": "Hardman v. State", "decision_date": "2004-02-05", "docket_number": "CR 03-524", "first_page": "7", "last_page": "16", "citations": [ { "type": "official", "cite": "356 Ark. 7" }, { "type": "parallel", "cite": "144 S.W.3d 744" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "337 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240967 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0413-01" ] }, { "cite": "342 Ark. 161", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342362 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0161-01" ] }, { "cite": "342 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342437 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0045-01" ] }, { "cite": "932 S.W.2d 756", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1996, "opinion_index": 0 }, { "cite": "326 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "year": 1996, "opinion_index": 0 }, { "cite": "339 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130677 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0348-01" ] }, { "cite": "352 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159688 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0092-01" ] }, { "cite": "346 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111308 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0062-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "347 Ark. 913", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683436 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "923", "parenthetical": "also stating that we have \"consistently viewed that phrase as part of the proof of the actor's mental state\"" }, { "page": "923" }, { "page": "924" }, { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0913-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-1-110", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-74-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "338 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243480 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0220-01" ] }, { "cite": "343 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226498 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0062-01" ] }, { "cite": "311 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896946 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0576-01" ] }, { "cite": "342 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342384 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0172-01" ] }, { "cite": "343 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226571 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0413-01" ] }, { "cite": "337 Ark. 219", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240934 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0219-01" ] }, { "cite": "340 Ark. 53", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365318 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0053-01" ] }, { "cite": "343 Ark. 159", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226543 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0159-01" ] }, { "cite": "344 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210128 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0433-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 692, "char_count": 15800, "ocr_confidence": 0.69, "pagerank": { "raw": 2.0205487935225578e-07, "percentile": 0.745344226632518 }, "sha256": "e62961e2f2db9bf418dd234921fd9fb92c41598628aa2d86fb9c8bab391bb0d3", "simhash": "1:8a1fcc2615bc5732", "word_count": 2625 }, "last_updated": "2023-07-14T17:43:53.781338+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Brandon HARDMAN v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nBrandon Hardman appeals the capital murder conviction and life sentence he received for killing Antwan Jones. Hardman does not challenge the sufficiency of the evidence, so we recite the facts only briefly; Police officers responded to a call-at 28th and Battery Streets in Little Rock on March 20, 2000. Upon arriving at the scene, they found a young man, Jones, lying on the ground with a bullet wound to the back of his neck. The area in which the shooting occurred was part of the \u201cVice Lords\u201d gang territory. Hardman was a member of the \u201cFolk\u201d or \u201cGangster Disciple\u201d gang. Hardman was eventually charged with and convicted of capital murder pursuant to Ark. Code Ann. \u00a7 5-10-101(a)(l) (Repl. 1997).\nOn appeal, Hardman raises three points for reversal: 1) throughout the trial, the State continuously referred to him by his gang name, \u201cLittle G,\u201d which he argues was unduly prejudicial; 2) the trial court erred in failing to instruct the jury on the lesser offenses of first-degree murder, second-degree murder, and manslaughter; and 3) the court erred by preventing Hardman from arguing to the jury that intent was required to commit the homicidal act in the unlawful discharge capital murder offense.\nWe first address Hardman\u2019s argument that the State\u2019s use of his gang name, \u201cLittle G,\u201d was unduly prejudicial. He points to numerous instances wherein either the prosecutor or witnesses referred to him as Little G. However, though he claims that the prosecutor referred to him by this moniker eight times during opening arguments, he did not object once during the State\u2019s opening arguments. Because he failed to make a timely objection in the trial court, he has waived this argument on appeal. See, e.g., Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001).\nNext, Hardman complains that the State\u2019s expert witness on gangs, Todd Hurd, told the jury that \u201cLittle G\u201d stood for \u201cLittle Gangster.\u201d However, again, Hardman failed to object to this testimony. The law, of course, is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Hardman\u2019s failure to make a contemporaneous objection to this testimony prevents him from asserting on appeal any error on the part of the trial court for admitting the evidence. Ferguson, supra; Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001).\nHardman takes further issue with the State\u2019s questioning of witness Natasha Davis, contending that the prosecutor consistently called him Little G during direct examination. Hard-man eventually objected to these references, saying he thought it was \u201cmore proper they use [Hardman\u2019s] real given name.\u201d The trial court responded, \u201cYeah, I think so\u201d; when the prosecutor replied that some of the witnesses only knew Hardman as Little G, and not as Brandon, the court said, \u201c[I]f they need referring to it, you can, but you\u2019ve gone beyond that.\u201d In this instance, then, Hardman received the relief that he requested.- It is a basic principle of law that where the appellant received the only relief he requested, he has no basis upon which to raise the issue on appeal. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993).\nFinally, Hardman argues that, despite his objection and the court\u2019s comments, the State continued to refer to him as Little G during the questioning of other witnesses. However, Hardman again failed to obj ect to this kind of questioning until another three witnesses \u2014 all of whom referred to him as Little G \u2014 had testified. When he finally objected, the following transpired:\nDefense: I\u2019m still kind of concerned about continuing to call him Little G. It doesn\u2019t seem like it\u2019s really stopped.\nState: I\u2019m trying not to, but if they do it, I can\u2019t help it.\nCourt: I don\u2019t have any problem with the way she\u2019s doing it, because some of these people \u2014 I think you need to first ask if they know who he is, but that\u2019s what they call him.\nDefense: Can\u2019t she ... say, \u201cYou know him as Little G, but his name is Brandon Hardman\u201d?\nCourt: I think she can cut down some of that; but if that\u2019s the way they know him, that\u2019s what they\u2019re going to call him.\nClearly, by waiting to object until this point in the trial, Hardman failed to raise an objection at the first opportunity. His failure to do so results in the objection not being preserved for appeal. See Berger, supra; Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). Further, when a party objects to a question when it is asked, but fails to object when it is repeated, the matter is not preserved for appeal. Marshall, supra; Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999).\nFor his second point on appeal, Hardman argues that the trial court erred in refusing his proffered jury instructions on first-degree murder, second-degree murder, and manslaughter. The proffered first-degree murder instruction provided that, \u201cwith the purpose of causing the death of Antwan Jones, Brandon Hardman caused his death.\u201d The proffered second-degree murder instruction stated that \u201cBrandon Hardman knowingly caused the death of Antwan Jones under circumstances manifesting extreme indifference to the value of human life.\u201d The proffered manslaughter instruction provided that Hardman \u201crecklessly caused the death of Antwan Jones.\u201d\nDeclining to give Hardman\u2019s proffered instructions, the trial court instead gave the jury the capital murder instruction based on \u00a7 5-10-101 (a)(10), which provides that a person commits capital murder if he \u201cpurposely discharges a firearm from a vehicle at a . person . . . and thereby causes the death of another person under circumstances manifesting extreme indifference to the value of human life.\u201d The trial court also instructed the jury pursuant to Ark. Code Ann. \u00a7 5-74-107(a) (Repl. 1997) \u2014 first-degree unlawful discharge of a firearm from a vehicle. This instruction informed the jury that it could find Hardman guilty of this offense if the State proved that Hardman knowingly discharged a firearm from a vehicle and thereby caused Jones\u2019s death.\nThe statute governing lesser-included instructions is Ark. Code Ann. \u00a7 5-1-110 (Repl. 1997). In particular, the statute provides that a defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:\n(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or\n(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or\n(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.\n\u00a75-1-110(b).\nThis court made it clear in McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), that \u201cthe determination of when an offense is included in another offense depends on whether it meets one of the three tests set out in section 5-1-110(b).\u201d On appeal, Hardman argues that he was entitled to his proffered first-degree instruction because, \u201cin order to prove the offense of unlawful discharge capital murder, the State must prove that the conduct causing the death of a person must be done with a purposeful mental state.\u201d This is so, he claims, because \u00a7 5-10-101(a)(10) requires that the victim\u2019s death be caused under circumstances manifesting extreme indifference to human life, which itself requires proof of intent. Therefore, he contends, his requested instruction on first degree murder (\u201cwith the purpose of causing the death of another person, he causes the death of another person\u201d) should have been a lesser-included offense of capital murder under \u00a7 5-10-101(a)(10), because they both have a purposeful mental state element.\nA close reading of \u00a7 5-10-101 (a) (10) reveals the error of Hardman\u2019s logic. In this statute, the act requiring the \u201cpurposeful\u201d mental state is the act of discharging a firearm from a vehicle at a person. It is true that the end result of this purposeful act is \u201ccaus[ing] the death of another person under circumstances manifesting extreme indifference to the value of human life,\u201d which requirement this court has held \u201cgoes to the perpetrator\u2019s intent.\u201d McCoy, 347 Ark. at 923 (also stating that we have \u201cconsistently viewed that phrase as part of the proof of the actor\u2019s mental state\u201d). Here, however, the proffered first-degree murder instruction contained an element not found in \u00a7 5-10-101(a)(10). That is, under the proffered instruction, the jury was required to find that Hardman acted \u201cwith the purpose of causing the death of another person.\u201d See also Ark. Code Ann. \u00a7 5-10-102(a)(2) (Repl. 1997). In other words, Hardman\u2019s first-degree murder instruction required the purposeful intent to be directed at the act of causing the death. Section 5-10-101(a)(10), on the other hand, requires the purposeful intent to be directed at the act of discharging a firearm from a vehicle; causing the death need only be done under circumstances manifesting extreme indifference to the value of human life, which this court has said means that the defendant \u201cmust act with deliberate conduct that culminates in the death of a person.\u201d McCoy, 347 Ark. at 923; Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001).\nIn McCoy, this court stated that the definition of \u201cpurposely\u201d \u201cencompasses the culpable mental state of acting knowingly with extreme indifference, which requires deliberate conduct with a knowledge or awareness that one\u2019s actions are practically certain to bring about the prohibited result.\u201d McCoy, 347 Ark. at 924. However, we have never held the inverse to be true \u2014 that is, that \u201cacting with extreme indifference,\u201d as is required in \u00a7 5-10-101(a)(10), encompasses \u201cpurposely.\u201d Therefore, as the State argues, the proffered instruction \u2022\u2014 \u201cwith the purpose of causing the death\u201d \u2014 actually contains a higher culpable mental state, with respect to the homicidal act, than the capital murder offense, \u00a7 5-10-101(a)(10), charged in the information. Because the proffered instruction does not differ from the offense charged only in the respect that a lesser kind of culpable mental state suffices to establish its commission, the trial court did not err in declining to give Hardman\u2019s proffered first-degree murder instruction.\nLikewise, the trial court did not err in refusing to give Hardman\u2019s proffered second-degree murder instruction. Hardman contends that the trial court\u2019s refusal to give his proffered instruction was error, because the second-degree murder instruction adds no element not contained in the unlawful discharge instruction. Again, however, the \u201cknowing\u201d element in the requested second-degree murder instruction references the causing of another\u2019s death; in the unlawful-discharge capital murder charge, the intent element goes to the discharge of the firearm. Thus, as with the rejected first-degree instruction, the second-degree murder instruction also would have required proof of an element \u2014 the intent attendant to the killing \u2014 not present in the unlawful-discharge capital murder instruction.\nHardman\u2019s third and final point on appeal is related to his second point. Here, he argues that the trial court erred in cutting him off when he began to argue, during closing arguments, that the State was required to prove that Hardman intended to kill Jones. During his close, defense counsel made the following statements:\nThis shooting, in order to be capital murder, they must show beyond a reasonable doubt that Brandon Hardman did this shooting exhibiting extreme indifference to human life. It can\u2019t just be that he shot out a window at somebody, and that automatically makes it capital murder, the worst homicide offense we have in this state. It can\u2019t be that. The legislature didn\u2019t make it that easy for the State to prove capital murder. They put on that it had to be exhibiting an extreme indifference to human life, and what that means is an intent to cause that murder.\nThe State objected at that point, arguing that counsel\u2019s statements were not the law, and that the State did not have to prove the intent with respect to the death. The prosecutor stated, \u201cYou just have to cause the death, you don\u2019t have to have any intent as to the death. . . . [W]e do not have to prove that he intended to kill anyone. We don\u2019t have to show that he had the purpose to kill someone. We don\u2019t have to show that he knowingly killed someone. All we have to show is he purposely shot out [of] that car and caused the death under [circumstances showing] extreme [indifference].\u201d Relying on the language in the unlawful-discharge capital murder statute, the trial court agreed with the State, saying that \u201cintent [to kill] does not appear in that instruction.\u201d\nThe trial court is given broad discretion to control counsel in closing arguments, and we will not interfere with that discretion absent a manifest abuse of discretion. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003); Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996)). It is the trial court\u2019s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Smith v. State, supra.\nOn appeal, Hardman argues that the court\u2019s statement that \u201cintent does not appear in that instruction\u201d was in error. However, as discussed above, \u201cunlawful discharge\u201d capital murder only requires an intent with respect to the discharging of the firearm. While it is true that the death must occur under circumstances manifesting extreme indifference to the value of human life, this court has held that the phrase \u201ccircumstances manifesting extreme indifference to the value of human life\u201d is \u201cakin to intent.\u201d McCoy, 347 Ark. at 922. The requirement of extreme indifference \u201cindicatefs] that the perpetrator of capital murder must act with deliberate conduct that culminates in the death of some person.\u201d Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). However, while these cases say that \u201cextreme indifference\u201d is \u201cakin to intent,\u201d none of them hold that the phrase is the functional equivalent of \u201cpurposely.\u201d The requirement that an act be done \u201cpurposely\u201d in the statute refers only to the act of discharging a firearm; therefore, the trial court did not abuse its discretion in preventing Hardman from arguing that the State was required to prove a purposeful intent to kill.\nFor the foregoing reasons, Hardman\u2019s conviction and sentence are affirmed. The record has been reviewed for other reversible error, as required by Ark. Sup. Ct. R. 4-3(h), and none has been found.\nAlthough Hardman mentions manslaughter in his point heading, he makes no specific argument with reference to this instruction in the text of his brief.\nPrior to the McCoy holding, our caselaw required that an offense must meet three criteria to be considered a lesser-included offense: (1) it must be established by proof of the same or less than all the elements of the greater offense; (2) it must be of the same generic class as the greater offense; and (3) it must differ from the greater offense based upon the degree of risk to persons or property or upon grades of intent or culpability. See Goodwin v. State, 342 Ark. 161, 27 S.W.3d 397 (2000); Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999).", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Bill Luppen, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Brandon HARDMAN v. STATE of Arkansas\nCR 03-524\n144 S.W.3d 744\nSupreme Court of Arkansas\nOpinion delivered February 5, 2004\nBill Luppen, for appellant.\nMike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0007-01", "first_page_order": 29, "last_page_order": 38 }