Morris v. State

193 S.W.3d 243, 358 Ark. 455, 2004 Ark. LEXIS 515
Supreme Court of Arkansas·Decided September 23, 2004·No. CR 03-1370·Published·Cited by 20 cases

Opinion

Robert L. Brown, Justice.

Appellant Calvin Morris apV peals his conviction for first-degree murder and his sentence to sixty years’ imprisonment. This court previously reversed and remanded Morris’s earlier conviction for first-degree murder and sentence to forty years’ imprisonment in Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003) (Morris 1). His sole point on appeal in the instant case is that the circuit court erred in allowing the State to cross-examine him regarding a tattoo on his right shoulder, which read “Death Before Dishonor.” Morris argues that the probative value of such evidence was substantially outweighed by the danger of unfair prejudice to him. We disagree and affirm the judgment of conviction.

The facts of this case can be gleaned from Morris I. To summarize, Calvin Morris testified that Chris Sharp, the murder victim, came close to hitting him with his vehicle in the parking lot of a Little Rock nightclub. An argument followed, and at some point, a gunshot was fired by a member of Morris’s group from the Morris car. Later, the two cars were side by side near the intersection of Asher and University Avenues. According to his testimony, Morris believed he saw a gun pointed at him from the other car and panicked. He shot into the Sharp car two or three times, striking the driver, Chris Sharp, and killing him.

Following this court’s reversal and remand in Morris I, defense counsel moved the circuit court in limine to exclude any reference to Morris’s tattoo. Counsel asserted that the probative value of the tattoo evidence was outweighed by the danger of unfair prejudice. The prosecutor responded that the tattoo was probative of Morris’s motive and state of mind in the shooting. More specifically, the prosecutor argued that it was probative of the fact that Morris “was mad; he was dishonored; he wasn’t going to take it.” The prosecutor further asserted that in his previous trial, several witnesses testified to Morris’s peacefulness and that his tattoo was evidence countering that. The circuit court denied Morris’s motion.

At trial, the State called Courtney Grandy, who had been in Morris’s car, as a witness. On cross-examination, defense counsel elicited from Grandy that he believed Morris was a peaceful person. Calvin Morris took the stand in his own defense, and he was cross-examined by the prosecutor about his tattoo. At that time, defense counsel objected to the questioning, and the circuit court overruled the objection. No redirect examination was conducted regarding the tattoo. The prosecutor made several references to the tattoo in his closing arguments without objection by defense counsel.

Morris argues, as his only point on appeal, that despite the fact that he put his peaceful character into issue, his tattoo had no probative value and suggested he had a propensity to kill people who offended him. Moreover, he emphasizes that the State failed to prove that Morris wore the tattoo at the time of the shooting. He maintains further that such propensity evidence is unfairly prejudicial. He claims that the jury did not believe his testimony that he thought he was about to be shot because of the State’s closing argument about his propensity to kill people who insulted him. In sum, he asserts that he was prejudiced by the State’s tattoo references in two respects: (1) he was prejudiced by the jury’s hearing evidence that had no probative value and was introduced solely to establish that he had the propensity to kill others who offended him; and (2) the jurors were tainted by this evidence. He urges that because of the tattoo argument, the jurors could not fairly consider his uncorroborated testimony establishing his justification defense. 1

The State responds that this issue as it pertains to closing arguments was waived, because Morris did not object to the prosecutor’s reference to the tattoo during those arguments. The State further urges that it offered evidence of Morris’s tattoo to show his motive and intent for shooting into Sharp’s car. It maintains that the tattoo expressed Morris’s attitude and belief which caused him to react to the perceived dishonor the way he did. The State claims that the jury heard Morris’s version of the shooting and was able to weigh the evidence of his motive and intent against his claim of self-defense. For all of these reasons, the State concludes that the circuit court did not abuse its discretion by allowing evidence and argument relating to the tattoo.

As an initial matter, we believe that this issue relating to the tattoo is preserved for appeal. While the State claims that the prosecutor’s numerous references to the tattoo during the closing arguments were not objected to and, thus, not preserved for our review, it is mistaken. This court has frequently observed that where a pretrial motion in limine has been denied, the issue is preserved for appeal, and no further objection at trial is necessary. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

Turning to the merits, this court reviews asserted errors concerning the admission of evidence under the following standard of review:

The decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse a trial court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Moreover, we will not reverse absent a showing of prejudice. Id. Similarly, a trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

Martin v. State, 354 Ark. 289, 299, 119 S.W.3d 504, 510-11 (2003).

Relevant evidence is defined i'n our Rules of Evidence as that evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Ark. R. Evid. 401 (2004). Although evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 403 (2004).

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Morris v. State, 193 S.W.3d 243, 358 Ark. 455, 2004 Ark. LEXIS 515 (Ark. 2004).

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