Sampson v. State

544 S.W.3d 580

Bruce Richard SAMPSON, Appellant

v.STATE of Arkansas, Appellee

No. CR–17–686

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 28, 2018

Dusti Standridge, for appellant.

Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

DAVID M. GLOVER, Judge

Bruce Sampson was convicted of three counts of Class D felony aggravated assault with a firearm pursuant to Arkansas Code Annotated section 5–13–204(a)(2) and sentenced to a total of thirty months' imprisonment. On appeal, he argues (1) the circuit court erred in not declaring a mistrial; (2) there was insufficient evidence to support his convictions for aggravated assault; (3) the State failed to disprove his defense of justification; and (4) the third exception to the contemporaneous-objection rule found in Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980), is applicable to three alleged trial errors—an erroneous jury instruction was given, the officers exceeded their authority in their encounter with Sampson in violation of Rule 2.2 of the Arkansas Rules of Criminal Procedure and violated his Fourth Amendment rights, and the affirmative defense of entrapment was supported by the evidence presented at trial. We affirm.

On October 13, 2016, Sebastian County Sheriff deputies Mark Harris and Daniel Bazar, along with Mansfield Police Department officer Brad Schmitt, were dispatched to investigate a report of Sampson allegedly shooting his neighbor's dog because the dog had attacked his rabbits. The officers approached Sampson's residence to speak with him about the incident and to ask him not to shoot toward his neighbor's house. What occurred after the officers arrived at Sampson's house is disputed. The officers approached the house by knocking on the carport door instead of the front door. The officers testified the lights went off in the house after the first knock, but Sampson testified he turned the lights on when he heard the knock. The officers' testimony was that they shined their flashlights at the door to illuminate the area for their safety and did not turn them off when Sampson came to the door and told them to do so. Sampson's testimony was that he did not know who was at the door, even though the officers had identified themselves; he stated he did not know if it was an officer or a person who was lying about his identity. According to the officers, Sampson was agitated and was hiding the right side of his body behind the door frame; because the officers could not see Sampson's hands, and because there had been a report that Sampson had recently been firing a gun, the officers asked Sampson to show them his hands. The testimony of the officers was that Sampson pulled his rifle out and swung it across all three of them, placed it in his arms, and the officers then drew their firearms. Sampson's testimony was that while he did deliberately point his operable, loaded .22 rifle at the three officers, the safety was on, and he pointed his gun at them only after the officers drew their guns on him.

Sufficiency of the Evidence

Although Sampson challenges the sufficiency of the evidence in his second and third points on appeal, preservation of an appellant's right to be free from double jeopardy requires a review of the sufficiency of the evidence before a review of trial errors. Campbell v. State , 2017 Ark. App. 59, 512 S.W.3d 663. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Wells v. State , 2017 Ark. App. 174, 518 S.W.3d 106. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State; only evidence supporting the verdict is considered. McCastle v. State , 2012 Ark. App. 162, 392 S.W.3d 369. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311.

On appeal, Sampson argues there was insufficient evidence to support his aggravated-assault convictions. A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5–13–204(a)(2) (Repl. 2013). Sampson further argues he was acting in self-defense, and the provisions of section 5–13–204 do not apply to a person acting in self-defense or the defense of a third party. Ark. Code Ann. § 5–13–204(c)(2). Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Green v. State , 2011 Ark. App. 700, 2011 WL 5562803. The circuit court instructed the jury on justification. Sampson contends the State failed to disprove his justification defense beyond a reasonable doubt. Neither of these sufficiency arguments is preserved for appellate review.

In a jury trial, a motion for directed verdict shall be made at the close of the State's evidence and at the close of all the evidence; the motion shall state the specific grounds on which it is being made. Ark. R. Crim. P. 33.1(a) (2017). The failure to challenge the sufficiency of the evidence in the manner required in subsection (a) constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c).

At the close of the State's evidence, the following colloquy occurred:

APPELLANT'S ATTORNEY : Your Honor, I don't believe the State has met its burden of proof in this case. We move for a directed verdict based on lack of evidence. The elements of the offense in this case are that the police officers have to believe that they are in a position of imminent threat of serious physical injury or death as a result of my client pulling a firearm on them. And had that been the case, then I believe under these circumstances that they would have used deadly force against Mr. Sampson had they thought they were going to be shot.

PROSECUTOR : Just to clarify, that's not what the law says. The officers don't have to believe anything.

APPELLANT'S ATTORNEY : That they are under circumstances manifesting substantial indifference to the value of human life.

The circuit court denied Sampson's directed-verdict motion. At the close of all the evidence, Sampson's attorney renewed "all previous motions in the same verbiage in which they were made on the same factual basis in which they were made." The circuit court again denied the motion.

On appeal, Sampson argues he was in his home, he did not show his gun until ordered to do so by the officers, he did not point the gun directly at the officers until they pointed their weapons at him, and he did not aim to shoot at law enforcement and had no intention of doing so. Sampson further argues he was justified in defending himself against officers while in his own home after the officers drew their weapons, and the State failed to disprove such justification beyond a reasonable doubt. Neither of these arguments is the argument Sampson made to the circuit court in his directed-verdict motions. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Lindsey v. State , 2017 Ark. App. 675, 536 S.W.3d 163. Because Sampson failed to raise the arguments he makes on appeal to the circuit court, his sufficiency arguments are not preserved for our review.

Mistrial

Sampson next argues that the circuit court erred in not declaring a mistrial during the voir dire of prospective jurors when the court asked if anyone knew any witnesses listed by the State. Mrs. Laticia Spells stated she knew one of the witnesses through her husband, who was the police chief, and she "really [didn't] think [she] could be impartial with this situation given what happened last year." The circuit court dismissed Spells from serving on the jury due to the nature of her husband's employment. Sampson moved for a mistrial, arguing he could not have a fair trial given the press exposure of the "Cooper" case¹ and Spells's statement irrevocably tainted the jury to such a degree that no cautionary instruction would cure the taint.² The State responded that Spells did not say what she was referring to, simply that she had read something that made her believe she could not be an impartial juror in this case. In denying Sampson's motion for a mistrial, the circuit court stated it would give an appropriate instruction at some point but would not do so at that time because it would call more attention to the issue. Sampson renewed his request for a mistrial before opening statements were made; the circuit court again denied the request, noting Spells did not mention Cooper by name. Sampson again renewed his request for a mistrial at the close of the State's case; in denying the request again, the circuit court noted it had immediately excused juror Spells for cause and had offered to make any sort of cautionary instruction should Sampson request it. Sampson did not request the circuit court to admonish the jury or give a cautionary instruction.

A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. McLaughlin v. State , 2013 Ark. App. 26, 2013 WL 244444. The decision to grant a mistrial is within the sound discretion of the circuit court and will not be overturned...