Fowler v. State

2015 Ark. App. 579, 474 S.W.3d 120, 2015 Ark. App. LEXIS 661
Court of Appeals of Arkansas·Decided October 21, 2015·No. CR-13-316·Published·Cited by 2 cases

Opinion

BRANDON J. HARRISON, Judge

| (Antwan Fowler appeals his first-degree murder conviction and argues that the circuit court erred in (1) denying his motion for directed verdict, (2) not allowing certain questions during the defense’s cross-examination of Dr. Frank Peretti, (3) not allowing the defense to call Dr. Peretti as a witness in its case-in-chief, and (4) enhancing Fowler’s sentence based on use of a firearm. We affirm.

In a felony information filed 23 September 2011, Fowler was charged with first-degree murder and' employing a firearm in the commission of the crime. He was also later charged as a habitual offender. At a jury trial held in . September 2012, the State presented the following testimony.

■ Jodi Thomas testified that her husband, Stevie Thomas, was killed on Monday, 20 June 2011. ' She testified that she had attended high school with Fowler but that her husband |gand Fowler- were not close friends. Jodi explained that on- June 17, the Friday before her husband was killed, he spoke to Fowler on the phone and had the call on speaker. According to Jodi, Fowler was-"screaming-and cursing and he told Stevie,- ‘Don’t put the folks in it, it is on, on shot.’ ” Jodi testified that* Stevie was very upset and felt threatened by the conversation., -She testified that they stayed home for most of: the weekend, which was Father’s Day weekend, but that on June 19. Stevie and his brother. Kenny Thomas, ..went .to visit their father’s grave and then went to a-.get-together at “Uptoym E’s House.” She explained that they drove her vehicle, a white 2001 Ga-lant, and that there was a .45-caliber handgun in her car .that she kept, for her own protection. She testified .that when her car was returned to her after her husband’s death, the gun was missing, and she eventually reported it stolen.

Pam McFarland testified that she lived at 1120 Ingram and that she and her boyfriend. Eric, had a barbeque for Father’s Day on 19 June 2011. She explained that the barbeque lasted all • day and into the night and that there were probably twenty people there at any given time. She testified that she knows Stevie and Kenny Thomas' but did not see them that night. She also testified that she knows Fowler and did see him walk by the front .of the house that night. McFarland testified that, at some point that evening, she went inside and fell asleep but awoke to loud noises that she thought were fireworks. She explained that she went to the door and saw several people kicking another person who was lying on the ground. She identified Fowler as the person on the ground and stated that it looked like he had been shot. She saw several people get into Kenny Thomas’s car and drive away.

IsMontana Wright, McFarland’s seventeen-year-old daughter, testified that she was also inside the house when she heard shots that sounded like firecrackers — four shots in quick succession, and then more shots later. She also looked outside and saw people kicking someone on the ground. She did not see anyone with a gun that night.

Sixteen-year-old April Yager testified that she was staying with her friend Montana Wright that night and that she was also inside when she heard the shots. She testified that she saw a man sitting in a white car in front of the house and that she “guess[ed] he got shot.” When asked why it was a guess, Yager stated that she was told that by the police. She acknowledged talking to Detective Sarah Ault with the Conway Police Department but insisted that she (Yager) said only what the police wanted her to say.

PROSECUTOR: So your testimony to this jury today that you were coming out and we were just standing there, coming out of the house, and you started hearing all «the popping, so you turned back around and that’s when I seen a guy walk up and that’s when I turned around, he was walking up and I turned around, I saw him crack his door and that’s when it started going.” [sic] You don’t remember saying any of that?
YageR: I just told you that’s what she told me I saw.
PbosecutoR: You did say that to her; is that right?
Yager: Sure, yeah.
Prosecutor: Are you denying that you said that to her?
Yager: I couldn’t deny it if you have it, but I’m telling you that she told me that I was outside when I told her I was inside.
Prosecutor: And so when you said, when she asked you: “He had shot at somebody in the car in the driver’s seat?” And |4you said, ‘Yeah the guy was sitting in the car.” So you told her that because you thought she wanted you to say?
Yager: That is what she wanted me to say.... I agreed with her because I wanted to go back in the house.
ProsecutoR: So you just lied to her and made that up?
YageR: Yes sir.
Prosecutor: So when you said he shot at'the guy in the driver’s seat, that was made up?'
Yager: Yes sir.
Prosecutor: And you said, “I knew that they were shooting at each other because I heard popping and so I turned around and heard a popping and I seen the flashes.[”] You just made that up?
PROSecutor: Ms. Yager, it is also fair to say that you have said that the person sitting in the car was not the first person to shoot, right?
YageR: Yes sir.
Prosecutor: And is that just made up?
Yager: That’s what she told me happened.
Prosecutor: Ms. Yager, you would agree that you also told, because she told you what to say, that the person that started firing was the person that ended up on - the ground, isn’t that right? That’s what you told Detective Ault, right? 1
YageR: He—
PROSecutoRí Because the person that started' shooting first was the person that ended up on the ground. Do you remember saying that, don’t you? I mean, I know that Ryou are saying that you didn’t see that, but you agree you said.that?
Yagee: I don’t remember saying, that.

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Fowler v. State, 2015 Ark. App. 579, 474 S.W.3d 120, 2015 Ark. App. LEXIS 661 (Ark. Ct. App. 2015).

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