Perry v. State

Supreme Court of Arkansas

Perry v. State

497 S.W.2d 10, 254 Ark. 939, 1973 Ark. LEXIS 1617

CourtSupreme Court of Arkansas

DecidedJuly 16, 1973

DocketCR 73-56

StatusPublished

Cited by4 cases

This text of 497 S.W.2d 10 (Perry 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.

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Perry v. State, 497 S.W.2d 10, 254 Ark. 939, 1973 Ark. LEXIS 1617 (Ark. 1973).

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Opinion

George Rose Smith, Justice.

Willie Lee Perry was charged with murder in the second degree, was found guilty of that offense, and was sentenced to ten years imprisonment. We find no merit in his two points for reversal.

First, Perry’s counsel, in seeking to prove self-defense by showing that the decedent was the aggressor, attempted to cross-examine police officers about the decedent’s police record. That evidence was properly excluded, because it would at best have shown specific acts rather than general reputation. Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467 (1968). Moreover, there was no proffer of proof, even though one of the officers had the record with him; so we have no way of knowing whether the record contained relevant information helpful to the accused. Consequently, if the record should prove to be inadmissible, as apparently it was, a retrial would be found to have been wholly unnecessary.

Secondly, it is contended that the trial court erred in failing to instruct the jury with respect to the lesser included offense of manslaughter. The burden was upon counsel to request such an instruction. Johnson v. State, 214 Ark. 902, 218 S.W. 2d 687 (1949). No such request was made, doubtless for the reason that the defense, as a matter of strategy, elected to confine the jury to the choice between a finding of second degree murder and an acquittal. That gamble having failed, the defendant is not entitled to an opportunity to change his tactics at a second trial.

Affirmed.

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George Rose Smith, Justice.

Willie Lee Perry was charged with murder in the second degree, was found guilty of that offense, and was sentenced to ten years imprisonment. We find no merit in his two points for reversal.

First, Perry’s counsel, in seeking to prove self-defense by showing that the decedent was the aggressor, attempted to cross-examine police officers about the decedent’s police record. That evidence was properly excluded, because it would at best have shown specific acts rather than general reputation. Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467 (1968). Moreover, there was no proffer of proof, even though one of the officers had the record with him; so we have no way of knowing whether the record contained relevant information helpful to the accused. Consequently, if the record should prove to be inadmissible, as apparently it was, a retrial would be found to have been wholly unnecessary.

Secondly, it is contended that the trial court erred in failing to instruct the jury with respect to the lesser included offense of manslaughter. The burden was upon counsel to request such an instruction. Johnson v. State, 214 Ark. 902, 218 S.W. 2d 687 (1949). No such request was made, doubtless for the reason that the defense, as a matter of strategy, elected to confine the jury to the choice between a finding of second degree murder and an acquittal. That gamble having failed, the defendant is not entitled to an opportunity to change his tactics at a second trial.

Affirmed.

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497 S.W.2d 10, 254 Ark. 939, 1973 Ark. LEXIS 1617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-state-ark-1973.

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