                                 Cite as 2017 Ark. App. 373

                   ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                       No. CR-16-811


                                                  Opinion Delivered   June 7, 2017

JOSHUA JOHN JOHNSON                               APPEAL FROM THE LOGAN
                              APPELLANT           COUNTY CIRCUIT COURT,
                                                  NORTHERN DISTRICT
                                                  [NO. 42PCR-14-31]
V.
                                                  HONORABLE JERRY D. RAMEY,
                                                  JUDGE
STATE OF ARKANSAS
                                APPELLEE          AFFIRMED


                               LARRY D. VAUGHT, Judge

       Appellant Joshua John Johnson appeals his conviction by a Logan County jury of first-

degree murder. On appeal, Johnson argues that the trial court erred by (1) admitting a blood

sample and resultant lab report, (2) refusing to instruct the jury on manslaughter, and (3)

refusing to exclude the victim’s mother from the courtroom during the testimony of other

witnesses. We disagree and affirm.

       It is undisputed that on March 19, 2014, Johnson went to his ex-wife Lora Karras’s

home, and when she came outside to see what he wanted, he shot her with a shotgun. When

Johnson saw that Karras was still alive, he shot her again in the head, killing her. At trial,

Johnson asserted the defense of mental disease or defect, presenting evidence that he suffered

from posttraumatic stress disorder (PTSD) resulting from his military service in Iraq and

Afghanistan and that he also suffered from depression and alcohol abuse.
                                  Cite as 2017 Ark. App. 373

       At the outset of the trial, Johnson’s counsel asked the court to invoke Rule 615 of the

Arkansas Rules of Evidence, commonly known as “the rule,” to exclude the victim’s parents,

Pam and Scott Boone, from the courtroom because they had both been subpoenaed to testify.

The court instituted the rule but exempted the Boones as the victim’s closest relatives, allowing

them to remain in the courtroom to view the trial.

       A blood sample, taken from Johnson on the day of the shooting, was initially misplaced

by police but was located eight days later in the police station and sent to the state crime lab

for testing. Johnson filed a pretrial motion to suppress all evidence relating to the blood sample

and the resulting lab result, arguing that the State could not adequately establish chain of

custody and that the sample had not been refrigerated for eight days prior to testing, which

made the results unreliable. The court denied the motion to suppress but cautioned the State

that it would be required to lay an adequate foundation for the evidence at trial. At trial, several

witnesses testified about how the sample had been obtained from Johnson, how it had been

misplaced, and how it had then been found eight days later. The evidence showed that officers

had removed two test kits, used one to take Johnson’s blood, and then erroneously placed the

used kit back on the shelf in the breathalyzer room, where unused blood-test kits are stored.

Don Riddle, a forensic toxicologist employed by the state crime lab, testified that he had tested

the blood sample and that it contained a blood-alcohol content of .19 percent. Riddle also

testified that lack of refrigeration for eight days would have had only a miniscule effect on the

blood-alcohol content of the sample, increasing it by .01 or .02 percent at most. The court

then asked defense counsel if Riddle’s testimony “satisfied [his] concerns for this issue,” to




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which defense counsel replied, “It does, Your Honor.” Riddle’s report was entered into

evidence without objection.

       Johnson’s brother, Fred Johnson, testified that he had been living with Karras, her

husband, Robert Karras, and her children at the time of the shooting. Fred testified that he

saw Johnson drive up to the home, get out of the car with a gun, and shoot Karras. Fred stated

that Johnson looked intoxicated. Fred testified that Johnson told him to get out of the house,

so Fred took the children and fled to a neighbor’s home. The three children testified to the

same, except that Johnson’s son said that he had not seen or heard the shooting because he

was in his bedroom at the time.

       Johnson’s wife at the time of the shooting (they had divorced by the time of trial),

Jennifer Johnson, testified that, prior to the shooting, Johnson had been drinking and they had

gotten into an argument. Jennifer testified that she told Johnson she was leaving and that he

helped her pack her car. Jennifer also testified that Johnson suffered from PTSD, that he had

been suicidal, and that she had taken him to the hospital the prior November because she

feared he would kill himself. She had also asked the police to do a welfare check on Johnson

on more than one occasion because she was afraid that he would harm himself. She testified

that Johnson had developed depression after his last deployment.

       Heather Chambers, an investigator with the Logan County Sheriff’s Office, testified

that she and other officers executed a search warrant for Johnson’s home, where they

discovered a 12-gauge shotgun, 56 shotgun shells, and an empty six-pack of an unspecified

alcoholic beverage. Adam Craig, an associate medical examiner, testified that Karras’s cause




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of death was homicide caused by shotgun wounds to her head, back, and left forearm. The

State rested, and Johnson moved for directed verdict, which the court denied.

       As its first witness, the defense called Pam Boone. She testified that she is Karras’s

mother and explained Karras’s marital history. She explained that Johnson and Karras’s first

child had been born when they were teenagers, that they were married when Karras was

eighteen, and that after they divorced Karras married Thomas Capo in 2008 while Johnson

was deployed. After Karras and Capo divorced, Karras discovered that Capo had sexually

abused her oldest child, and Capo was ultimately convicted of an unspecified criminal offense

stemming from the abuse. Karras then married Robert Karras. Boone testified that although

they were still married at the time of Karras’s death, the couple had not been living together.

She testified that Johnson had, while home from deployment, spent the night with Boone and

her husband in order to have visitation with his children.

       Dr. Jon Matthew Fabian testified that Johnson suffered from PTSD, depression, and

an alcohol-abuse disorder. The State’s expert witness, Dr. Mark Peacock, disagreed, opining

that Johnson killed Karras due to voluntary intoxication from alcohol, which is not a

cognizable defense to murder. Dr. Lacey Willet Matthews also testified for the State and agreed

with Peacock’s assessment.

       Three witnesses who had served with Johnson in Iraq and Afghanistan testified about

certain events that Johnson had experienced, such as bombings and attacks, as well as the day-

to-day stresses of their work. They also testified as to statements Johnson had made about

financial and family stress at home.




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       On rebuttal, Karras’s oldest daughter testified that she had witnessed a physical

altercation between Johnson and her mom, in which Johnson slammed Karras against a wall

and put her in a choke hold.

       The defense renewed its motion for directed verdict. The defense then argued to the

court that it was entitled to an instruction on the lesser offense of manslaughter, based on the

idea that there was evidence that Johnson committed the crime while under extreme emotional

distress due to his PTSD and depression. The court denied the request for a manslaughter

instruction. Johnson was convicted and sentenced to forty years’ imprisonment in the

Arkansas Department of Correction. He filed a timely appeal.

       Johnson’s first point on appeal is that the trial court erred in admitting evidence and

testimony relating to the blood sample that was taken from him on the day of the crime but

was inadvertently misplaced by the police for eight days before it was sent to the state crime

lab for testing. He argues that the State did not establish chain of custody and that the lack of

refrigeration for eight days rendered the results of testing performed on the sample unreliable.

We do not reach the merits of Johnson’s argument because he waived it by assenting to the

introduction of this evidence at trial. While it is true that Johnson filed a motion to suppress

the blood-sample evidence, when the issue arose at trial, Johnson’s counsel agreed that the

State’s witness from the crime lab, Dr. Riddle, had fully “satisfied [his] concern for this issue.”

When the State then moved to admit Dr. Riddle’s report on the blood sample, the defense

stated that it had no objection.

       This case is similar to Sales v. State, 374 Ark. 222, 231, 289 S.W.3d 423, 430 (2008), in

which the Arkansas Supreme Court held that an appellant had waived his objection to evidence


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he had previously sought to exclude when he stated at trial that he had “no problem” with the

admission of that evidence. It is axiomatic that an appellant’s failure to make a

contemporaneous objection prevents him from asserting on appeal any error on the part of

the trial court for admitting the evidence. McClain v. State, 361 Ark. 133, 136, 205 S.W.3d 123,

124 (2005) (citing Hardman v. State, 356 Ark. 7, 144 S.W.3d 744 (2004); Hill v. State, 337 Ark.

219, 988 S.W.2d 487 (1999)). Here, Johnson not only failed to make a contemporaneous

objection to the admission of testimony and evidence about the blood sample at trial, but also

affirmatively consented to the introduction of that evidence. As such, he waived the issue for

appeal.

          Johnson next argues that the court erred in refusing to instruct the jury on

manslaughter. We have stated repeatedly that it is reversible error to refuse to instruct on a

lesser-included offense when there is the slightest evidence to support the instruction. See

Flowers v. State, 362 Ark. 193, 213, 208 S.W.3d 113, 128 (2005); Morris v. State, 351 Ark. 426,

430, 94 S.W.3d 913, 915 (2003). However, we will affirm a trial court’s decision not to give an

instruction on a lesser-included offense if there is no rational basis for giving the instruction.

Flowers, 362 Ark. at 213, 208 S.W.3d at 128. Finally, we will not reverse a trial court’s ruling

regarding the submission of such an instruction absent an abuse of discretion. Grillot v. State,

353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003).

          While the statute defines manslaughter as a killing committed under extreme emotional

disturbance for which there is a reasonable excuse, “[w]e have held repeatedly that, in order

for a jury to be instructed on extreme-emotional-disturbance manslaughter, there must be

evidence that the defendant killed the victim in the moment following some kind of


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provocation, such as ‘physical fighting, a threat, or a brandished weapon.’” Boyle v. State, 363

Ark. 356, 362, 214 S.W.3d 250, 253 (2005) (quoting Kail v. State, 341 Ark. 89, 94, 14 S.W.3d

878, 881 (2000)); see also Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). Passion alone will

not reduce a homicide from murder to manslaughter. Spann, 328 Ark. at 514, 944 S.W.2d at

540.

       Here, Johnson argues that his fight with his wife, her decision to leave him, and his

PTSD created the kind of extreme emotional distress anticipated by the statute. However, in

Kail, the supreme court affirmed the denial of a manslaughter instruction where the defendant

had killed his father-in-law in the midst of extreme marital discord with his wife. The court

recognized that his marital problems may have “aroused unbalanced passions” in the

defendant but that a manslaughter instruction required proof of provocation. 341 Ark. at 94,

14 S.W.3d at 881. Here, we hold that the circuit court did not abuse its discretion in finding

that Johnson had failed to present any evidence to support a manslaughter instruction.

       Johnson’s last point on appeal is that the court erred in refusing to exclude Pam Boone

from the courtroom pursuant to Rule 615 of the Arkansas Rules of Evidence. Although she

was a subpoenaed witness, the court allowed her to remain in the courtroom and observe the

testimony of other witnesses because she is the victim’s mother and closest family member.

Johnson argues that the plain language of Rule 615 is mandatory and contains no exception

for the victim’s close relatives. Johnson is correct as to the substance of the rule, but his

challenge on appeal fails because he cannot demonstrate that the court’s ruling prejudiced him.

       In Clark v. State, our supreme court addressed a similar challenge to a violation of Rule

615 and stated that “[p]rejudice is not presumed and we do not reverse absent a showing of


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prejudice.” 323 Ark. 211, 216–17, 913 S.W.2d 297, 300 (1996) (quoting Wallace v. State, 314

Ark. 247, 862 S.W.2d 235 (1993)). Johnson cannot demonstrate prejudice for two reasons.

First, Johnson, rather than the State, called Boone as a witness during the guilt phase of the

trial, indicating that despite her presence in the courtroom throughout the trial, he still viewed

her testimony as beneficial to his case. Second, Boone’s testimony was not prejudicial because

it did not address any fact or issue in dispute. Boone testified as to her daughter’s marital

history, the fact that Johnson’s brother lived with Karras at the time of her death, and the fact

that one of the children had been sexually abused by Karras’s second husband, Thomas Capo.

Boone did not provide any negative or disparaging testimony about Johnson and did not testify

about any material issues related to Johnson’s defense of mental disease or defect. Because

Johnson has not demonstrated that the court’s failure to exclude Boone pursuant to Rule 615

was prejudicial, reversal is not warranted.

       Affirmed.

       HARRISON and BROWN, JJ., agree.

       Knutson Law Firm, by: Gregg A. Knutson, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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