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Newton v. State6/28/2000
the bumper submitted to him appeared to be inconsistent with the injury pattern he found. In addition, appellant's own expert, Mike Vowell, testified that the bumper was inconsistent with the injuries sustained by Ray. At trial, the State contended that appellant had replaced the bumper after he hit Ray, so that the bumper removed from appellant's truck and examined by Dr. Peretti and Vowell was not the one that hit Ray. We believe that this argument hinged on the jury's determination of the credibility of witnesses. The jury was not bound to find the experts' testimony conclusive, and it was proper for the jury to weigh this testimony. See Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). We do not believe that appellant was prejudiced even if the State withheld evidence. Because this matter was one of credibility and weight to be given the evidence, the trial court did not err in failing to grant a new trial. See Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989).
Finally, appellant claims that the State failed to disclose evidence that officers had gone to Austin Brothers Tire Service in Little Rock to determine if appellant had purchased new tires for his truck there, after Ray was killed. Appellant called Hugh Austin, the owner of Austin Brothers, as a witness. Austin testified that he looked unsuccessfully on two occasions for records showing that appellant had purchased tires from him. Austin's testimony was favorable to appellant, so we do not find that appellant was prejudiced by it. Further, the State was entitled to cross-examine Austin in order to point out any weaknesses in his testimony. Thus, the trial court did not err by refusing to grant a new trial on this basis.
Affirmed.
Jennings, J., agrees.
Pittman, J., concurs.
John mauzy pittman, Judge, concurring. I concur in the decision to affirm appellant's convictions. I write separately only to state my views about the argument regarding the trial court's decision to instruct the jury on the lesser-included offense of manslaughter.
Appellant argues that, because he completely denied involvement in the crimes, no lesser-offense instruction should have been given. There are two problems with his position. First, appellant's defense was not limited to complete denial. Appellant did not testify at trial. While he presented other evidence in an attempt to show that he was elsewhere on the evening in question, he also did his best to establish at trial that the victim's death was the result of just "an accident," i.e., at most a case of manslaughter, and not second-degree murder. Appellant also argued along those lines in his motions for a directed verdict.
In any event, it is not error to give an instruction on a lesser- included offense if there is a rational basis in the evidence for doing so. Such a rational basis is present if the State's evidence is susceptible to an interpretation that would make one guilty of the lesser offense. See Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988); Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989). Therefore, even had appellant simply denied any involvement, the trial court would not have erred in giving the manslaughter instruction if the evidence was such that a jury could rationally conclude that appellant was guilty of manslaughter instead of murder. Here, the evidence was susceptible to the rational interpretation that the driver had acted recklessly (the mental state necessary for manslaughter) and not knowingly (the mental state required for second-degree murder) in killing the victim, and the trial court did not err in giving the manslaughter instruction.
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