Hardman v. State

144 S.W.3d 744, 356 Ark. 7, 2004 Ark. LEXIS 76
CourtSupreme Court of Arkansas
DecidedFebruary 5, 2004
DocketCR 03-524
StatusPublished
Cited by13 cases

This text of 144 S.W.3d 744 (Hardman v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardman v. State, 144 S.W.3d 744, 356 Ark. 7, 2004 Ark. LEXIS 76 (Ark. 2004).

Opinion

Tom Glaze, Justice.

Brandon 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 “Vice Lords” gang territory. Hardman was a member of the “Folk” or “Gangster Disciple” gang. Hardman was eventually charged with and convicted of capital murder pursuant to Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1997).

On appeal, Hardman raises three points for reversal: 1) throughout the trial, the State continuously referred to him by his gang name, “Little G,” 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.

We first address Hardman’s argument that the State’s use of his gang name, “Little G,” 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’s 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).

Next, Hardman complains that the State’s expert witness on gangs, Todd Hurd, told the jury that “Little G” stood for “Little Gangster.” 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’s 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).

Hardman takes further issue with the State’s 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 “more proper they use [Hardman’s] real given name.” The trial court responded, “Yeah, I think so”; when the prosecutor replied that some of the witnesses only knew Hardman as Little G, and not as Brandon, the court said, “[I]f they need referring to it, you can, but you’ve gone beyond that.” 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).

Finally, Hardman argues that, despite his objection and the court’s 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 — all of whom referred to him as Little G — had testified. When he finally objected, the following transpired:

Defense: I’m still kind of concerned about continuing to call him Little G. It doesn’t seem like it’s really stopped.
State: I’m trying not to, but if they do it, I can’t help it.
Court: I don’t have any problem with the way she’s doing it, because some of these people — I think you need to first ask if they know who he is, but that’s what they call him.
Defense: Can’t she ... say, “You know him as Little G, but his name is Brandon Hardman”?
Court: I think she can cut down some of that; but if that’s the way they know him, that’s what they’re going to call him.

Clearly, 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).

For 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. 1 The proffered first-degree murder instruction provided that, “with the purpose of causing the death of Antwan Jones, Brandon Hardman caused his death.” The proffered second-degree murder instruction stated that “Brandon Hardman knowingly caused the death of Antwan Jones under circumstances manifesting extreme indifference to the value of human life.” The proffered manslaughter instruction provided that Hardman “recklessly caused the death of Antwan Jones.”

Declining to give Hardman’s proffered instructions, the trial court instead gave the jury the capital murder instruction based on § 5-10-101 (a)(10), which provides that a person commits capital murder if he “purposely 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.” The trial court also instructed the jury pursuant to Ark. Code Ann. § 5-74-107(a) (Repl. 1997) — 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’s death.

The statute governing lesser-included instructions is Ark. Code Ann. § 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:

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Bluebook (online)
144 S.W.3d 744, 356 Ark. 7, 2004 Ark. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardman-v-state-ark-2004.