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Crews v. State

Court of Appeals of Arkansas, Division I

December 6, 2017



          Gregory K. Crain, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.


         Jimmy Lee Crews appeals the sentencing order entered by the Hot Spring County Circuit Court, finding him guilty of first-degree murder and sentencing him to forty years' imprisonment with a consecutive term of fifteen years' imprisonment for a firearm enhancement. On appeal, Jimmy argues that the circuit court erred in (1) refusing to give the justification jury instruction; (2) refusing to give the extreme-emotional-disturbance-manslaughter jury instruction; and (3) denying his motion for a directed verdict.[1] We affirm.

         The record establishes that Jimmy lived in a camper on property owned by his niece, Loni DiGiacomo, and her husband, Scott, located on Camp Road near Bismarck, Arkansas. Loni, Scott, and their children lived in a separate home-a trailer with a connected workshop-approximately 100 feet from the camper where Jimmy lived. The victim, Ken Baum, also lived on Camp Road and owned two rental properties nearby. Ken was a friend of Scott's, but Ken and Jimmy did not like each other.

         On the afternoon of September 19, 2015, Ken went to the DiGiacomo home and asked Loni if she knew whether Jimmy had gone to one of Ken's tenant's trailers and asked to take a shower. Ken asked, as he had before, if she and Scott would order Jimmy to move off their property. Loni said no because Jimmy had no place to go. Ken left but returned later that afternoon to discuss the matter with Loni and Scott. Ken was persistent about Jimmy moving, and Loni again said no. Loni said Ken was frustrated and left.

         When Jimmy came home that evening, Scott told Jimmy about Ken's allegation. Jimmy became very upset and denied having been on Ken's property. At Scott's request, Ken agreed to ask his tenant to meet him, Scott, and Jimmy at the end of Ken's driveway on Camp Road to resolve the matter. At the beginning of the meeting, according to Scott, Ken and Jimmy verbally confronted each other for a few seconds before both men backed away without touching each other. Shortly thereafter, the tenant and an unidentified man arrived in a vehicle. Scott testified that Jimmy stuck his head into the car so the tenant could see his face, and she tentatively identified Jimmy as the man who had come to her trailer. Still upset, Jimmy left and headed to the DiGiacomo home. Loni testified that when Jimmy returned, he was frantic, scared, and very upset with Scott, calling him a liar, a child molester, and a rapist. Jimmy asked Loni to call the police on Scott, but she refused. Loni said that Jimmy did not say anything about Ken. Loni did not see any bruises, blood, red marks, or scratches on Jimmy.

         Scott arrived home a few minutes after Jimmy. Scott said that Jimmy was very mad at him for letting Ken treat Jimmy poorly. Scott and Jimmy were arguing in the workshop for about four minutes when Ken entered, leaned against a table with his arms crossed against his chest, and glared at Jimmy. As Ken glared, Jimmy started pacing and asked Ken why he was doing this to him. Scott described the tension in the workshop as "an environment of terror." After a few minutes, Jimmy turned around, and said to Scott, "I'll show you what I'll do, " and he left. Scott stated that after two or three minutes, he heard Jimmy storm back into the workshop, say "All right, mother fucker, " and fire a shotgun at Ken. Jimmy fled but surrendered the next morning.

         A diagram drawn by a law-enforcement officer showed that Jimmy was approximately twenty feet from Ken when he shot him. The medical examiner testified that the victim sustained "massive injury to both lungs and massive shredding injury to the heart." The medical examiner also stated that the barrel of the shotgun was close enough to the victim to leave paper wadding from the shotgun shell on the victim's coat.

         Scott testified that before Ken was shot, he never said a word, never pulled out a gun, and never advanced toward Jimmy. Loni testified that when Ken entered the workshop, he was not screaming or acting out and that she did not see him with a gun. Law-enforcement officers testified that they did not find a firearm on Ken at the crime scene and that they did not find any evidence consistent with Jimmy's claim of self-defense.

         At trial, Jimmy testified that Ken had made allegations against him for years and that Ken had pointed his Derringer pistol, which he was known to carry, at Jimmy twice before the night of the shooting. According to Jimmy's testimony, when he and Scott walked down to Ken's driveway, Ken shoved, hit, and scratched Jimmy. Jimmy further stated that when Ken entered the workshop, he pointed his Derringer pistol at Jimmy. Jimmy said he was scared, no one would help him, no one would call the police, he felt trapped, and he panicked. He said that he left the workshop, got the shotgun from his camper, returned to the workshop, and shot Ken in self-defense.

         In rebuttal, Ken's daughter, Sherry Caldwell, testified that within hours of the shooting, she located Ken's Derringer pistol in his home between the mattresses of his bed. Sherry's ...

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