Sutton v. State

844 S.W.2d 350, 311 Ark. 435, 1993 Ark. LEXIS 16
CourtSupreme Court of Arkansas
DecidedJanuary 11, 1993
DocketCR 92-347
StatusPublished
Cited by17 cases

This text of 844 S.W.2d 350 (Sutton 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
Sutton v. State, 844 S.W.2d 350, 311 Ark. 435, 1993 Ark. LEXIS 16 (Ark. 1993).

Opinions

Robert L. Brown, Justice.

The appellant, Ripple Wayne Sutton, raises numerous issues on appeal. One of these issues has merit — the circuit court’s failure to sever the charge for a felon in possession of a weapon for trial purposes. We reverse on that point and remand for a new trial.

On August 13, 1990, Lyle Boliou was murdered. His body was found in a pickup truck parked by an offshoot of the St. Francis River near Paragould. He had three gunshot wounds to the back of the head. On December 10,1990, Sutton was arrested on a felon/firearm charge, the firearm being a .22 caliber pistol. Sutton had been convicted of grand larceny in 1974. Six months later, on May 6, 1991, he was arrested for the murder of Boliou and subsequently charged with first-degree murder. At the time, Kathy Riggsbee, who was an eyewitness to the shooting and who had been charged with hindering the apprehension of Sutton, was also under suspicion as an accomplice to the murder. She told investigating authorities that Sutton was the culprit.

The two charges, felon/firearm and first-degree murder, were then consolidated for trial. On August 19,1991, which wasa week before trial, Sutton orally moved the trial court to sever the two charges so that the murder charge could be tried first. Sutton’s counsel advised the court that he would be filing a written motion before trial. He did so on the day of the trial, August 26, 1991, and the motion was denied. The court’s stated reason for denying the motion was that the two offenses joined were part of a single scheme and plan, which eliminated grounds for severance under Ark. R. Crim. P. 22.2(a). Sutton further moved in limine to exclude cross-examination on his felony conviction because it was more than ten years old. That motion, too, was denied.

The trial took place over three days. A certified copy of Sutton’s 1974 conviction for grand larceny was introduced as part of the state’s case-in-chief. No additional objection was made to the felony conviction at time of introduction. At the end of the trial, the jury was instructed that the conviction could only be considered for credibility purposes. Sutton was convicted on both charges and sentenced to life imprisonment on the murder charge and six years on the weapon charge, with the sentences to be served consecutively.

I. JOINDER OF THE FELON/FIREARM CHARGE

In the last year and a half, we have examined the prejudicial impact that occurs when a felon/firearm charge is combined with a murder charge for trial on two occasions. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 297 (1991). In each instance, we affirmed the conviction and judgment, though we held that the trial court had erred in failing to sever the charges for trial. We did so, based on what amounted to a harmless error analysis. Though there was error, we held that the error was not prejudicial to the defendant because of the existence of one or more overriding factors, including: (1) the overwhelming evidence of guilt; (2) cross-examination of the defendant on the prior conviction; and (3) a limiting instruction to the jury.

In both Sullinger and Ferrell, we scrutinized the circumstances of the case in light of these factors and concluded that the joinder error was harmless, primarily due to overwhelming evidence of guilt and the fact that the defendant would have taken the stand in any event and been cross-examined about his felony conviction.

The state now urges us either to affirm Sutton’s conviction using the Sullinger and Ferrell analysis or on the basis of McEwen v. State, 302 Ark. 454, 790 S.W.2d 432 (1990). In McEwen, a felon/firearm charge and aggravated robbery charge were tried together and convictions for both resulted. Prejudice was argued on appeal due to the joinder, and we rejected the argument on the basis that severance was a matter discretionary with the trial judge. We noted that the judge’s discretion was not abused by the ruling in McEwen because it was premised on the fact that the same gun was used in both offenses and that severance would have meant two trials and a duplicative effort. We also observed in that case that the prior felony conviction could have been brought out on cross-examination and, thus, no prejudice resulted from the joinder.

We first consider in the case at hand whether Sutton’s motion to sever the murder and felon/firearm charges and his motion in limine to exclude the prior felony conviction preserved the issue for appeal without a further objection made at trial. We have held that raising an objection by pretrial motion without a corollary objection at trial is sufficient to preserve the issue for appeal, but failure to object at trial precludes the party from relying on anything disclosed at trial which was not brought out at the pretrial hearing. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied 450 U.S. 1043 (1981) (pre-trial motion to suppress lineup identification which was denied preserved the issue without additional objection at trial); see also Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981) (when a motion in limine is overruled, no further objection is needed). Here, Sutton moved to sever the charges and moved in limine on the prior conviction. Under these circumstances, an additional objection to the felony conviction at trial was not necessary.

In examining the approach taken to the joinder issue in other jurisdictions, we observe a wide range of solutions. Some jurisdictions have balanced judicial efficiency against prejudice to the defendant and denial of a fair trial under the Due Process Clause and held in favor of severance. See, e.g., State v. Cook, 673 S.W.2d 469 (Mo. App. 1984). The District of Columbia Court of Appeals, while noting that joinder may not always be an abuse of discretion, has held that a high level of care is necessary to avoid prejudice when a felon/firearm charge is joined for trial. U.S. v. Dockery, 955 F.2d 50 (D.C. Cir. 1992); but see United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985) (district court did not abuse its discretion in denying severance). The D.C. Circuit in Dockery stated:

The primary concern is that prior crimes evidence “weigh[s] too much with the jury and . . .' overpersuade [s] them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”

955 F.2d at 53; quoting Michelson v. United States, 335 U.S. 469, 476 (1948). The D.C. Circuit concluded that the defendant was prejudiced and looked to factors such as the government’s refusal to admit the prior conviction by stipulation rather than proof and the absence of a cautionary instruction on inferences to be drawn from the conviction as reasons for reversal.

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Bluebook (online)
844 S.W.2d 350, 311 Ark. 435, 1993 Ark. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-state-ark-1993.