Verdict v. State

868 S.W.2d 443, 315 Ark. 436, 1993 Ark. LEXIS 709
CourtSupreme Court of Arkansas
DecidedDecember 20, 1993
DocketCR 93-603
StatusPublished
Cited by15 cases

This text of 868 S.W.2d 443 (Verdict 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
Verdict v. State, 868 S.W.2d 443, 315 Ark. 436, 1993 Ark. LEXIS 709 (Ark. 1993).

Opinion

Robert L. Brown, Justice.

Danny E. Verdict was convicted of murdering his ex-wife, Marcella Kelly, and sentenced to life in prison. He appeals his conviction and sentence and presents four issues for our review. He asserts that one of his two attorneys was prevented from being present during all of voir dire and that this denied him a fair trial; that a statement made on his trip back from California after his arrest was in violation of his Miranda rights; that the circuit court erred in allowing his daughter to testify against him; and that an expert witness’s testimony regarding forensic odontology was irrelevant and not credible and, thus, should have been disallowed. None of the issues has merit, and we affirm the sentence.

On February 2, 1992, Marcella Kelly was found dead in her residence in north Jonesboro with six or seven bullet wounds in her body. She had been shot from behind. She also had what appeared to be a bite wound on her left thumb. Numerous 9MM shell casings were found on the kitchen floor. Her roommate, Ann Chamberlin, discovered the body at about 3:45 a.m. and reported to Jonesboro police officers that she last saw Kelly on Saturday afternoon, February 1, 1992. She said that Kelly told her that her ex-husband, Verdict, was planning to drop by to bring a stereo. A stereo was found by the police officers in her living room chair. Four neighbors reported seeing Verdict’s car on Saturday afternoon parked in Kelly’s driveway. Police officers went to the home that Verdict shared with his aunt, Betty Reeves, that same Sunday, and she reported that Verdict and much of his clothing were gone. She also stated that Verdict owned a 9MM Ruger semi-automatic pistol.

Verdict later testified at trial that he drove to California to see his daughter, Kimberly Myers, one last time before he committed suicide. He told his daughter that he had shot Kelly, and she urged him to turn himself in to the authorities which he did. Two officers then came to California to transport him back to Arkansas — Officer James Tate of the Jonesboro Police Department and Deputy Sheriff Spencer Moore of the Craighead County Sheriff’s Department. The officers read Verdict his Miranda rights in California, and he refused to give a statement.

On the drive back to Arkansas, according to Officer Tate, Verdict did make an incriminating statement. The men were at a gasoline station in Sulphur Springs, Texas, and Deputy Sheriff Moore had left the car. Verdict said that he dreaded the upcoming trial, and Tate responded that the best thing to do was to tell the truth. Verdict replied: “I just didn’t know what I was doing.”

Verdict was charged with capital murder and later charged with a separate count as a habitual offender with three prior offenses. The circuit court found him to be indigent and appointed two attorneys, Val Price and John Barttelt, to represent him. The State had dental impressions taken from Verdict to match against the bite wound on the victim’s left thumb and sent the impressions and the severed thumb to a forensic odontologist in Mississippi, Dr. Michael West, for examination.

A few days before trial, the circuit court heard pretrial motions, including Verdict’s motion in limine to exclude the testimony of Dr. West concerning the bite mark on Kelly’s thumb. The court noted that in Arkansas scientific evidence is yadmissible if it is relevant and concluded that this evidence was relevant.

At the same hearing, Val Price stated that he objected to the trial setting on November 9, 1992, because he had an oral argument in front of the Arkansas Supreme Court on that morning and would miss voir dire. The court concluded that co-counsel, John Barttelt, could select the jury.

■ The trial in this matter followed. After voir dire, the circuit court conducted a Denno hearing and considered Verdict’s motion to suppress his statement made on the trip from California to Arkansas on the basis that it was not knowingly made after a waiver of Miranda rights. The motion was denied. Verdict’s daughter, Kimberly Myers, who was subpoenaed from California, testified that her father had confessed to her that he shot Kelly. The video deposition of Dr. Michael West was played to the jury. West testified that the bite on Kelly’s thumb matched the pattern of Verdict’s teeth and that without a doubt he was the biter.

Verdict then testified and admitted shooting Kelly but said that he lost control of himself. He denied biting her thumb. The jury convicted him of first degree murder, and he was sentenced to life imprisonment.

I. CONTINUANCE

Verdict’s first assertion of error is that the circuit court erred when it refused to grant him a one-day continuance when one of his two attorneys, Val Price, had an oral argument before this court and could not be present as the trial began.

The burden is on the movant to show good cause for a continuance. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); see also Ark. R. Civ. P. 27.3. Such a motion is addressed to the discretion of the trial judge and will not be reversed absent an abuse of discretion. Oliver v. State, supra; Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The burden of proving an abuse of discretion due to resulting prejudice in denying a continuance is upon the appellant. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). This court has repeatedly stated that prejudice is not presumed in this context, but, instead, an appellant must demonstrate prejudice before we will consider a trial court’s denial of a continuance to be an abuse of discretion. See, e.g., King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). A mere assertion of error is not sufficient to warrant reversal. Kilgore v. State, supra.

We give Verdict’s argument in this regard little credence because he was represented by his other appointed counsel, John Barttelt, as the trial began and for part of voir dire, and there is no indication that he was prejudiced in any form or fashion by Barttelt’s solo representation. There is no claim that Barttelt was incompetent or incapable of conducting voir dire or that any juror was improperly seated or improperly struck during the period of Val Price’s absence. Price returned before the noon recess and participated in the balance of voir dire. The absence of prejudice is fatal to Verdict’s claim of error. Lynch v. State, 188 Ark. 831, 67 S.W.2d 1011 (1934). The circuit court correctly denied the continuance motion.

II. SUPPRESSION OF STATEMENT

Verdict next contends that the circuit court erred by not suppressing his statement to Officer James Tate of the Jonesboro Police Department during their trip from California to Arkansas.

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Bluebook (online)
868 S.W.2d 443, 315 Ark. 436, 1993 Ark. LEXIS 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verdict-v-state-ark-1993.