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Wooten v. State11/9/2005
ng the testimony of the witnesses.
As for appellant's third assertion of error, appellant argues that the jury should have been instructed on the lesser included offense of manslaughter. However, in Kelly v. State, 80 Ark. App. 126, 91 S.W.3d 526 (2002), we stated that when a lesser-included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser-included offense is cured. See Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998) (quoting Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987)). This is commonly referred to as the skip rule. Id. (quoting Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991)). Here, it appears that the jury was given instructions on first and second-degree murder, yet they convicted appellant of first-degree murder. While there may have been evidence to support the giving of a manslaughter instruction, any error here was cured by the jury's convicting him of the greater offense.
Accordingly, we find no error and affirm.
Gladwin, Bird, Griffen, Vaught and Roaf, JJ., agree.
Pittman, C.J., Hart and Crabtree, JJ., dissent.
John Mauzy Pittman, Chief Judge, dissenting.
I disagree with the majority's holding that the trial court did not commit reversible error by permitting police lieutenant Jason Dickinson to testify that the victim told him that appellant committed a battery against her. The majority, somewhat confusedly, simultaneously holds that Lieutenant Dickinson's statement was not hearsay; that Lieutenant Dickinson's statement was hearsay but was admissible under the residual exception; and that it does not matter whether or not the statement was hearsay because the admission of the statement was harmless in light of appellant's admission that he killed the victim. The majority is wrong on all counts.
There was evidence that appellant and the victim worked at a Coca- Cola facility. Although both were married to other people and had families, they had a sexual relationship. Appellant wanted to terminate the relationship; the victim did not and telephoned him repeatedly. Appellant made harassment charges against the victim at work with regard to the telephone calls. Appellant confessed to killing the victim and hiding her body, saying that the murder occurred in the course of a discussion in which the victim threatened his family. The issues at trial went to the events surrounding the homicide and appellant's mental state at that time. Over appellant's hearsay objection, Lieutenant Jason Dickinson was permitted to testify that the victim told him that appellant committed a battery against her approximately ten days before her death. Lieutenant Dickinson's testimony was abstracted as follows:
On June 13th, Mrs. Stone [the victim] came to the Sheriff's Department and she specifically asked for me. She wanted to advise me of a problem that she was having at work. She advised that she was having problems with a guy by the name of Jason Wooten. She advised me that he had been harassing her and she feared her job was in jeopardy. She appeared to me to be scared of him. She also advised me that she and Jason Wooten had gotten into an argument and that he had grabbed her on the arm and caused a bruise. She showed me the bruise.
She also told me that Jason Wooten had filed a lawsuit against her and Coca-Cola Bottling Company for sexual harassment and she advised me that it wasn't true. She advised that Jason had been followi
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