Henderson v. State

201 S.W.3d 401, 360 Ark. 356
CourtSupreme Court of Arkansas
DecidedJanuary 20, 2005
DocketCR 04-630
StatusPublished
Cited by10 cases

This text of 201 S.W.3d 401 (Henderson 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
Henderson v. State, 201 S.W.3d 401, 360 Ark. 356 (Ark. 2005).

Opinion

Robert L. Brown, Justice.

Appellant David Earl Henderson appeals from his judgment of conviction for attempted murder in the first degree, aggravated robbery, and residential burglary. He was sentenced to life imprisonment. He asserts two points on appeal: (1) that the circuit court erred in preventing his counsel from responding to the prosecutor’s statement during voir dire regarding convictions and circumstantial evidence; and (2) that the circuit court erred in allowing evidence of a prior theft by Henderson against the same victim. We affirm the judgment of conviction.

On the evening of July 10, 2003, Kathleen Price was lying in her bed in her apartment in the Sunset Motel in Springdale. At the time, Ms. Price resided at the motel and served as its manager. She collected rent from the occupants and showed empty units to potential renters. While lying in her bed on that particular night, Ms. Price heard a loud noise and got out of her bed. She found a man climbing through her window, after having pushed her air-conditioning unit inside the window onto her floor. The man yelled at her not to scream, but she did, and he began to choke her. After hitting the man with a club that a friend had loaned her for protection, the man grabbed the club and continued choking her with his hands and the club. She passed out. The next thing she recalls is coming to and calling for help. Police officers from the Springdale Police Department arrived at the scene, and after searching her apartment, they discovered that a bag of money containing $250 was missing. In addition, $40 was missing from Ms. Price’s purse.

Henderson was charged with attempted first-degree murder, aggravated robbery, and residential burglary. At his ensuing trial, Ms. Price identified Henderson as the man who climbed through her window and attacked her that evening. She also testified that Henderson and his roommate had moved into the motel six months earlier. She added that seven days earlier, she and Henderson had had an incident. She stated that Henderson had come over to her room and complained about another person living at the motel. When Ms. Price and he began to leave her apartment, she had her back to him. She testified that when she looked back, Henderson appeared to be pushing something down into his pants. After returning from trying to talk to the other resident, she discovered that her money bag for that week was missing, and she called the police department. The police officers searched Henderson’s room and found the money bag, receipt, and the cards in the bag for that week. After she went to Henderson’s apartment to inquire about the missing bag, Ms. Price said that while he did not admit taking the bag, he told her that he would pay her for the missing money.

At the conclusion of the trial, the jury found Henderson guilty of attempted murder in the first degree, aggravated robbery, and residential burglary and sentenced him to life imprisonment.

Henderson first argues that the circuit court erred in limiting his counsel’s voir dire. He contends that the prosecutor made a statement regarding circumstantial evidence that was misleading to the venire and that it was within his right to respond to the statement. He further asserts that by sustaining the prosecutor’s objection to his counsel’s response, the circuit court gave credibility to the prosecutor’s statement that a majority of cases are proved by circumstantial evidence. He maintains that the circuit court unfairly discounted his counsel’s own statement in response, which resulted in prejudice to him.

The relevant colloquy at voir dire is this:

Prosecutor: That’s circumstantial evidence, facts you know, facts that are introduced, you infer and determine what happened. Does anyone have a problem using circumstantial evidence to convict someone? The large vast majority of cases are proved with circumstantial evidence. Why? Because you limit witnesses, you do, you commit crimes you generally want to limit the witnesses and the evidence. You don’t go out and shoot somebody at center court of a Razorback basketball game because more than likely other people are going to see you. The law recognizes that [in] most cases, the vast majority are proven by circumstantial evidence....
Defense Counsel: Well now, another thing, he stated earlier that the vast majority of cases get convicted with just circumstantial evidence, he said that. Well, you also understand that a vast majority of cases where there’s acquittals, the vast majority of those have just circumstantial evidence. Would you be —
Prosecutor: Your Honor, I’m going to object.
The Court: Yes, that’s not a correct statement, counsel, and you need to limit your inquiry to the three legitimate areas in the statute and so let’s move this process along.
CONTINUING VOIR DIRE
Defense Counsel: Do you understand that a case can have circumstantial evidence and it can still have direct evidence but that still does not, that still cannot be enough to find someone guilty beyond a reasonable doubt, would everyone agree with that? ...

Before addressing the merits, we turn to a preservation point raised by the State. The State claims that while Henderson now asserts that the prosecutor’s statement at voir dire was misleading, he failed to object to that statement in circuit court. Furthermore, the State argues that defense counsel did not state any grounds in opposition to the circuit court’s restriction of his voir dire; nor did he object to the impanelment of the jury. For these reasons, the State urges that Henderson waived his right to raise the prejudice point on appeal. In addition, the State contends that any prejudice caused by the prosecutor’s statement could have been cured by an admonition, and because Henderson failed to request one, any failure by the circuit court to give an admonition to the jury is not an abuse of discretion.

We agree with the State. Henderson first argues in his brief on appeal that the prosecutor’s statement that the “vast majority of cases are proved with circumstantial evidence” was “misleading.” Yet, he voiced no objection to that statement to the circuit court. In Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000), this court held that where an appellant had not objected to any restriction of his voir dire and never objected on the record to the impanelment of his jury, his assertion that the circuit court improperly restricted his voir dire was not preserved for appeal. The same holds true in the instant case. By not objecting, Henderson failed to alert the circuit court that he contested that statement. Thus, the circuit court had no opportunity to rule on the matter, and it is not preserved for our review. See London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hortenberry v. State
2017 Ark. 261 (Supreme Court of Arkansas, 2017)
Campbell v. State
2009 Ark. 540 (Supreme Court of Arkansas, 2009)
Banks v. State
2009 Ark. 483 (Supreme Court of Arkansas, 2009)
Osburn v. State
2009 Ark. 390 (Supreme Court of Arkansas, 2009)
Hamm v. State
209 S.W.3d 414 (Court of Appeals of Arkansas, 2005)
Fells v. State
207 S.W.3d 498 (Supreme Court of Arkansas, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
201 S.W.3d 401, 360 Ark. 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-state-ark-2005.