White v. State

2009 Ark. 374, 326 S.W.3d 421, 2009 Ark. LEXIS 390
CourtSupreme Court of Arkansas
DecidedJune 25, 2009
DocketCR 08-1402
StatusPublished
Cited by3 cases

This text of 2009 Ark. 374 (White 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
White v. State, 2009 Ark. 374, 326 S.W.3d 421, 2009 Ark. LEXIS 390 (Ark. 2009).

Opinion

ROBERT L. BROWN, Justice.

| Appellant Ricky Earl White was convicted of first-degree murder. Because of previous felony convictions, he was sentenced as a habitual offender to life imprisonment for the murder charge, and his sentence was enhanced by fifteen years for using a firearm to commit the murder, pursuant to Ark.Code Ann. § 16-90-120(a) (Supp.2007). The circuit judge ordered the sentences to run concurrently. White raises one issue on appeal: that the circuit judge abused his discretion in admitting testimony of his possession of a .380 caliber handgun. We affirm.

In the early morning hours of February 2, 2008, Penze Wine was shot and killed in the parking lot of a recording studio in Southwest Little Rock. According to the State’s theory of the case, Wine and Carlos Pace had spent time in the recording studio during the evening of February 1, 2008 and the early morning of February 2, 2008. They were drinking beer, |2and when they had consumed it all, they decided to drive down the street to a gas station to purchase more beer. After doing so, Wine and Pace returned to the studio, where some of the other people present said they wanted more beer as well. After that request, Pace testified that Wine and he again left the studio and got into Wine’s car. Apparently, as Wine began to back up, he bumped into White’s car.

It was Pace’s testimony that he knew White and recognized him when Wine and he got out of the car. 1 Pace told the jury that he did not see any damage to White’s car and that Wine said, “I’ll pay for any damage or whatever.” Pace’s testimony was that there “wasn’t an argument” between Wine and White, but that White “was just like, ‘you ran into my car, you hit my car.’ ” Pace then told the jury, “Penze [Wine] kept saying, you know, repeatedly that, ‘I’ll pay for any damages.’ Next thing I know I heard a shot and saw Mr. Wine on the ground.” He then identified White as the person who shot Wine.

Gary Wilkins, a friend of Wine’s and Pace’s brother, was also at the recording studio on the night in question. He testified that after Pace and Wine left the studio for the second time, right before the shooting occurred, he went to the front door of the building and saw Wine’s “car sitting there and that white Cadillac behind it and [he] told them you — all need to come in and get off that parking lot because it’s too late out there.” Wilkins said that he did not see a gun, but he saw Wine, Pace, and another person standing by the cars and that 1 Sas he “started shutting the door then [he] just heard a bam.” According to Wilkins, he looked outside again, and Wine “was on the ground.” He testified that he “heard a shot” and identified White as the person who had been in the white Cadillac that night. He said that he was “a hundred percent” certain that he recognized White as the person who was in the white Cadillac.

The State introduced the testimony of another witness to the shooting, Latonya Miller. Miller told the jury that she was home on the night in question, across the street from the recording studio. She testified that she had a direct view from her front window to the parking lot. She said that she heard “loud conversation” outside of her house and “went to go look out the window.” She testified that she saw “a white Cadillac and ... a white car pulled up in front of the — parked in front of the studio.” Next, Miller said:

As I’m standing there just looking seeing what they was doing, I see one guy with his hands up, well, and one guy with his back towards me. It was a bigger guy with his back towards me. And as I’m looking, I see fire. I seen the guy fall and hit the ground. As I see that, I’m stuttering and I’m like, oh. Got nervous, got scared because I’m like, okay, something happened across the street. I called 911.

Miller then testified that she told the emergency operator that someone had been shot across the street from her house and that “a black guy got into a white Cadillac and he’s driving away.” The prosecutor later asked Miller if she had ever seen the white Cadillac before, and Miller responded in the affirmative and said she knew the Cadillac because the man that drove it lived “five houses right up the street from me” and “the reason why I knew the Cadillac is because my nephew used to play with his kids up the street.” Miller then ^identified White as the man who owned the white Cadillac and testified that she saw him in the parking lot on the night in question.

Dr. Stephen A. Erickson, the deputy chief medical examiner at the Arkansas State Crime Lab, testified that he performed an autopsy on Wine. It was Dr. Erickson’s testimony that the manner of death was homicide. According to Dr. Erickson, Wine died of a gunshot wound to the chest, and the bullet was a “thirty-eight caliber class range.” Stan Wilhite testified that he worked for the Little Rock Police Department, Crime Scene Investigation and that he recovered a .380 caliber spent hull from the scene of the crime. While the gun used to kill Wine was not recovered, the State introduced the testimony of Anita Ray, over White’s objection, to the effect that she had seen White with a .380 caliber handgun and knew him to drive a white Cadillac.

White specifically maintains in his sole point on appeal that Anita Ray’s testimony was inadmissible under Arkansas Rule of Evidence 404(b) because:

Ms. Ray’s statement that she had seen Appellant White with a .380 caliber handgun would assist the jury in finding Appellant White guilty of the murder of Penze Wine only if the jury was willing to conclude that Appellant White was a bad man who had a propensity to habitually carry a .380 caliber handgun and that is why he had one with him when he confronted Mr. Wine at the crime scene.

Rule 404(b) provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, | ¡^preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b) (2009).

It is well settled by this court that testimony of other criminal activity is admissible “if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal.” See Green v. State, 365 Ark. 478, 494, 231 S.W.3d 638, 651 (2006). In other words, the evidence offered under Rule 404(b) must make the existence of any fact of consequence more or less probable than it would be without the evidence. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and this court will not reverse absent a showing of manifest abuse of discretion. See id.

As a threshold matter, this court must determine whether Rule 404(b) even applies in the context of Wfiiite’s case. Stated differently, did the State, in fact, introduce evidence of White’s “other crimes, wrongs, or acts” through Ray’s testimony? Ray’s testimony, in its entirety, was

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Michael Landon Doll v. State of Arkansas
2020 Ark. App. 153 (Court of Appeals of Arkansas, 2020)
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824 F.3d 753 (Eighth Circuit, 2016)
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2013 Ark. 171 (Supreme Court of Arkansas, 2013)

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Bluebook (online)
2009 Ark. 374, 326 S.W.3d 421, 2009 Ark. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-ark-2009.