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Detherow v. State

Court of Appeals of Arkansas, Division II

September 17, 2014

TERRY DETHEROW, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. CR-12-2256]; HONORABLE LEON JOHNSON, JUDGE.

James Law Firm, by: William O. " Bill" James, Jr., for appellant.

Dustin McDaniel, Att'y Gen., by: Rachel H. Kemp, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, Judge. PITTMAN and WALMSLEY, JJ., agree.

OPINION

Page 868

KENNETH S. HIXSON, Judge

Appellant Terry Detherow appeals his convictions for manslaughter and third-degree battery, asserting reversible error on the basis that the trial judge abused his discretion on two evidentiary rulings. One ruling permitted the State to introduce evidence regarding facial injuries on his girlfriend, and the other ruling refused the defense permission to call the prosecuting attorney as a witness during trial to impeach State witnesses. Because the trial court did not abuse its discretion, coupled with appellant's failure to demonstrate resulting prejudice even had such an abuse of discretion been shown, we affirm.

Appellant was charged with the first-degree murder of John Jacob Mosley and the first-degree battery of Charles Edward Wilmoth following a shooting on the night of an annual party held in Scott, Arkansas. Appellant contended that he pulled his gun from his pocket in self defense when he felt physically threatened by party-goers, and in a struggle over the gun, it discharged at least twice, resulting in the fatality and injury. A Pulaski County Circuit Court jury found him guilty of the lesser-included offenses of manslaughter and third-degree battery. The jury sentenced appellant to an aggregate of 540 months in prison, enhanced because he was a habitual offender and because the jury found that he committed manslaughter with a firearm.

Several persons in attendance at the party testified at the trial. John Arthur Mosley, uncle to the deceased John Jacob Mosley, testified that he lived in Scott, Arkansas. It was his property where the annual all-day crawfish party was held, and he estimated that about 150 people attended. He said that the children would fish and play in the Scott Bayou; there was a stage for a band; there were horses; and food was served from approximately 4:00 p.m. until dark. Some people brought campers and tents to the property. He did not see, but he did hear, shots being fired. He ran to the scene, finding his thirty-seven-year-old nephew on the ground, bleeding and with a bullet hole in his chest. He drove him to the hospital, but his nephew did not survive.

Amber Rice testified that when her friend Tammy Davis arrived at the party that day, Tammy took off her sunglasses, revealing a black eye. Amber asked Tammy what happened, and Tammy told her that her boyfriend Terry Detherow (appellant) did it. Later, Amber realized that Detherow had a pistol in his pocket, and when she asked him why he had a gun, he told her it was for his protection at his barber shop. Amber later saw Detherow holding a gun, walking out of the party.

Candice Sanchez testified she arrived at about 7:30-8:00 that night and that she did not know Tammy Davis or Detherow before the party. Sanchez became aware that Detherow had punched a man, who was on the ground bleeding. Detherow appeared to be angry, yelling at the man he hit. When she asked Detherow why he

Page 869

hit the person, Detherow responded by throwing his arms up and saying, " Come on, f**k you, I'm from the country, b**ch." Sanchez said that four or five other people were within reaching distance of Detherow, telling Detherow to leave, but she did not see anyone touch him. Detherow then began to back away, saying, " Y'all want some?" and pulling out his gun. Sanchez testified that Detherow raised the gun and shot it into the air. She ran away to the woods but heard two more shots. Later, she saw Detherow standing at the exit gate, still holding the gun.

Lasa Robertson testified that she was a longtime friend of the Mosley family. She observed Detherow, Tammy Davis, Tony Givens, and Gary Ross under a nearby tent canopy. She heard Detherow being loud, calling Tammy foul names and telling her to get up and leave with him. Robertson saw that Tammy had a black eye and was drunk; Robertson assumed she did not want to go with Detherow when she did not get up on his command. She witnessed Gary Ross stand behind Tammy's chair and tell Detherow, " She's not going with you." Detherow threatened and then punched Ross in the jaw. As she reached for Detherow's arm and asked him to leave, she testified that he turned to her and said, " I'll drop a b**ch . . . ...


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