dissenting. Appellant unquestionably shot and killed a fine police officer who was acting in the line of duty in Pocahontas. He was charged with capital murder and being a felon in possession of a firearm. As set out in the majority opinion, “[I]t was error to join murder and the weapon charges for trial. Ferrell v. State. . . [305 Ark. 511, 810 S.W.2d 29 (1991)].” Also, as set out in the majority opinion, the prosecutor was guilty of misconduct. The majority opinion recites, “We have no doubt that a trial tactic of the prosecutor was to tag Sullinger with the label of a cocaine abuser.” The record shows that appellant had not used cocaine for twelve years, and the prosecutor knew it. In addition, there was no evidence that appellant was a homosexual or that sex or sexual preferences had anything to do with the killing of the police officer. Yet, as set out in the majority opinion, the prosecutor in voir dire asked a prospective juror, “Mr. Chesser, do you believe that one man placing another man’s penis in his mouth and sucking on it is normal human behavior, if the guy doing the sucking enjoys it?” With these admitted errors, the majority opinion summarily holds that “there was no prejudicial error committed.” I am unable to agree with such a holding.
In Ferrell v. State, supra, cited in the majority opinion as authority for its holding, we held that a similar error in joining offenses was not prejudicial because the evidence of guilt was overwhelming. In that case, appellant was charged with first degree murder and claimed self-defense. It was one or the other: guilty or not guilty. We held that the error “was rendered harmless by the circumstances of this case.” Ferrell, 305 Ark. at 516, 810 S.W.2d at 32. In the case at bar it was also unquestioned that appellant killed the victim, but the defense in this case raised questions about appellant’s mental capacity to form the requisite intent. It was not one or the other. Instead, it was a case of guilty of either capital murder or first degree murder or second degree murder or manslaughter. He was charged with capital murder, and the State sought to convict him of that charge. His defense was lack of mental capacity to form the requisite intent. The jurors may have had some question about his mental capacity to form the required intent for capital murder since they found him guilty of first degree murder. The jury might have found him guilty of second degree murder if the prosecutor had not been guilty of misconduct, which may have been designed to cause prejudice, and had the trial court not erred. This case was not a case of appellant being simply guilty or not guilty. It was a case in which the degree of the crime was governed by his capacity to form the required intent. Thus, I cannot agree that the prosecutorial misconduct, which may have been designed to cause prejudice, and the trial court’s error, were harmless. Accordingly, I dissent.
Holt, C.J., and Newbern, J., join in this dissent.