*1 § under for filing responses period following 20-day 27-1135. there for reversal as a third point
Appellants argue their because position of interest prejudicial conflict of the estate the executor both attorney the same represented will. named in the testator’s Appellants sole devisee and the find we nor any specific prejudice neither allege suggest no error.
Affirmed. of Arkansas v. STATE CASSELL
Harold Davy 616 S.W. CR 80-110 Arkansas Court of Supreme delivered Opinion June *2 Defender, Ray by: Alvin State Appellate E. Schay, Defender, Cummings, Hartenstein, and Gordon Chief Deputy for appellant. Fewell, Atty. L. Asst. Clark, Gen., Victra by: Atty.
Steve Gen., for appellee. *3 George In the morning early Smith, Rose Justice. 21, 1975, police December Sunday, Springdale
hours of murdered wooded officer, Tillman was Hussey, John crime con- particularly The was Fayetteville. area west in the back of four times in that was shot temptible Hussey his he wrists helpless, the head with his own while was pistol van-type him. a Travel-All Nearby handcuffed behind it smoking on fire and was still vehicle was set man the fortuitously during morning by discovered with his wife and children. be woods happened had radioed Hussey Officer morning At about 3:49 a vehicle with he was stopping to his headquarters Cobb, officer, Brian heard A fellow license number JEX-966. at and went once to place the radio communication Fayetteville-Spring- on Hussey, point mentioned minutes after When arrived about four dale Cobb highway. car Hussey’s police parked he found the radio message still Officer its flashing. itself on the blue highway, lights found. car and could not be was not — federal, Prompt work thorough police state and — local enabled the to file a prosecuting attorney capital 26, 1976, murder charge January Ray against James and the Renton Harold appellant, Davy Cassell. information charged defendants murdered having Officer he Hussey while the line of duty. Bench acting
62 warrants were issued, but some months elapsed 30 before Cassell was arrested in in June, 1978, Montana and returned to Arkansas in November of that year. The two cases were severed and tried separately. This appeal is from a verdict and judgment finding guilty him to sentencing life imprisonment without parole.
Cassell’s principal is that argument the State’s proof, necessarily circumstantial for want of an eyewitness, was insufficient support verdict of guilty. Before narrating the testimony we again emphasize, done, as we have often although instructed, should jury here, as was that circumstantial evidence must be consistent with the guilt defendant and inconsistent with any other conclusion, reasonable AM 106, Cl that is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported substantial evidence, which means whether could have jury reached its conclusion without having resort to speculation or conjecture. State, Brown v. Ark. S.W. 2d 616 (1975); Abbott State, 558, 561-562, Ark. S.W. 2d (1974). must jury be convinced accused’s guilt doubt, we, a reasonable beyond but had the having witnesses, advantage seeing are hearing guided by the substantial evidence rule. Graves & Parham v. S.W. 2d 806 *4 in a 1,597-page resulting
The trial for days, continued in much not really The testimony record. typewritten in this to testify Cassell chose Neither Renton nor conflict. in which in the order events not We the course of case. state chronological sequence. in a witnesses testified but Marie A for the State Connie witness principal living when she Caves, began not quite eighteen who was were Cassell The two joined Renton Hot Springs. with Hussey’s three months before about in September, 1975, until months, September, least ten from murder. For at Cassell, Renton, with traveled about Connie July, suicide committed who man, McLaughlin, third Carl Don murder. the after several months the three men was that The of effect Connie’s They burglaries. criminals committing professional were Lee Ford names, becoming Renton used assumed Jimmie traveled The four Richard Green. becoming and Cassell at motels stopping states together, various through Chrysler van and Cassell’s brown Renton’s Travel-All using the tools men and bought each selected car. passenger activities, were criminal all tools needed in their but they Renton, of possession appears kept bag a “job” of the small Before doing have been the leader group. needed. men decide what tools would be would (Thursday) Connie testified that on December man, Lynn Larry men we have mentioned and fourth three Wallace, in Dallas and started to Arkansas left her in a motel 20, they checked to do a there. On December job Saturday, the register Inn at Holiday Fayetteville. signed into the Travel-All van as Richard Green. the afternoon During in the motel and the were seen Chrysler parked together lot, with four men by talking together. parking standing store in testified Rogers An employee Campbell-Bell he three in the store a two or times day saw during Renton, man he later identified as accompanied he could not The men weren’t doing others describe. “They business. there.” just store was Campbell-Bell night; burglarized criminals were taken. The become may
about coats tools, left left the hurriedly, they bag alarmed and seen it positively, many which identified having Connie store, near the testified that at times. Frank who lived Perry, vehicle and a car passenger a.m. he saw a van-type about 1:45 field between his house “real an open fast” across driving He certainty, but not thought, Campbell-Bell. An witness testified expert the car was a vehicle. Chrysler they of the tire tracks showed photograph car, the tires but no on Cassell’s design resembled identification was positive possible. *5 said, we radioed at about Hussey,
Officer 3:49 Renton’s). van that he had a stopped (unquestionably Cobb, car, was some or when found Officer Hussey’s miles south of headed toward Darrell Rogers, Fayetteville. area, in the a car in Harp, delivering newspapers who drove he and 4:00 saw three vehicles testified between 3:30 front, A in car was a Travel-All stopped together. passenger it, or vehicle feet behind and a type surburban about or 30 dark, car that. and Springdale patrol Harp behind and between his vehicle patrolman could see only had said in an earlier Travel-All. statement Harp Ford, car a he could have been but was uncertain passenger it. about witness,
A Gillman, defense a Charles semi-retired who had done person military some work with the police railroad, and with a testified that he police drove three vehicles at a.m. He said saw about the first one was 3:45 sedan, an off-white Ford the next an International Travel- All, and the third car. saw the Springdale He police police there, van, officer there. He could not in the standing see but three, appeared be several or in it. persons, possibly two van had Texas license plate. On cross examination he said he knew the officer was He position. dangerous in trouble, certain his own mind the in officer was he did but He made stop. of the incident until he report at to be happened stopped roadblock week later. He said error, first in police his statements to in that partly car, he the third said vehicle was a Fayetteville police van an license, Arkansas and there persons were four van. The could have concluded from the jury the entire case that Gillman was also mistaken about off-white Ford.
McLaughlin’s sister testified that McLaughlin owned a white in December, 1975, Ford but there was no testimony he had ever used a car such in his criminal activities. Connie testified she had never seen the vehicle. The sister testified that before her brother killed himself he telephoned her said that he had killed a policeman in Arkansas and couldn’t just it. about forget Connie testified on rebuttal June, 1976, she inwas Seattle Renton, Cassell, At McLaughlin. time, presence others, said McLaughlin that if he ever decided to take his own life he would leave a note or letter to let know that he people *6 murder, friends the so his take the blame for would discussion, in on the Cassell implicated. not be was would like that killed anything that if he was or and “he confirmed him, That shared on also.” it blamed he would want the first one to cast upon have all the blame willingness if men all four would be the case die as joint guilt, suggests also times. Connie was shot four were present that he said in a in Alabama Cassell testified once motel arrest, that he was wanted for his knew there was warrant murder, up. he give that if he was would caught for and the on other matters that occurred
We mention two o’clock the murder. At about 11:00 Sunday of morning Paul at the home of appeared Renton and Cassell John Potter, in Renton and City. a used car dealer Oklahoma in the had used their assumed names buying men from Potter about earlier. Both were Chrysler days nervous; off his wanted to They Renton had shaved beard. not the another car. car lot was trade for Potter’s Chrysler the he Sunday, for business on but open accompanied the and deal which the completed men to lot Chrysler car. exchanged was another on the the
Also of still Sunday morning discovery van was to the smoking reported police. Hussey’s body In the nearby, plate, found license ashes JEX-966. kind buttons of same as those on some of snap coats stolen at Campbell-Bell. Cassell, men, Renton, testified that four
Connie Wallace, returned the motel Dallas McLaughlin, off his shaved December then Cassell also By 23. new men new names and obtained beard. All the assumed Renton, four, of I.D.’s group (identifications). original traveled to- Cassell, and Connie apparently McLaughlin, months, of their course for another seven pursuing gether from Atlanta Seattle. territory crime over a ranging its for Cassell was identity purpose, served change until murder. arrested months after Hussey’s sufficient to hesitancy We holding Under our law one verdict support guilty. crime,
participates standing by its aiding commission, with the equally guilty who fires principal fatal shot. 482 S.W. 2d In Johnson two men had (1972), entered a house to commit larceny. The owner house returned unexpectedly, his *7 was killed in an daughter exchange of gunfire. Regardless of shot, who fired the fatal even if it father, was the either intruder could found be of murder. This guilty is language to the at pertinent case bar:
Each conspirator or is participant responsible for done which everything followed and directly immedi ately execution common as one of purpose its probable and natural consequences. Bosnick v. State, 846, 248 Ark. S.W. 2d and 454 burglary 311. larceny, committed, if or the scheme to commit these crimes, existed, if it did not terminate until the perpe trators left the scene. State, 717, Clark v. Ark. 169 S.W. The acts of the 276 in an participants effort to 849. are a escape part of the continuous scheme or conspir and the act of acy State, one is the act of all. Wilson v. 846, Ark. 68 2d 100]; State, S.W. Clark v. supra; [188 State, 111, Maxwell v. 188 Ark. 64 S.W. 2d In the 79. cited in cases Wilson from other jurisdictions, clearly that the law recognized holds a participant crime responsible for the acts of another acting concert with him or in the furtherance aof common or object, Commonwealth design purpose. v. Camp bell, 541, Allen 7 Mass. (1863); Butler v. 541 People, 89 641, Ill. 18 N.E. State, 125 338 (1888); Taylor v. 41 Tex. 564, Cr. R. S.W. State, (1900); Keaton 55 41 Tex. 961 621, Cr. R. S.W. (1900); 57 1125 Commonwealth Moore, 121 88 Ky. S.W. (1905). 1085 This case is different wholly from those which the evidence only to connect the accused with a crime is his association with a at a participant time and place remote from the offense. State, and E.g., Vaughn Wilkins v. Ark. 252 S.W. 2d (1972), in Redman v. distinguished 774, 784, S.W. 2d Here the proof of joint participation therefore common guilt in our opinion convincing. Wallace, about disregard we may In our discussion Renton, three, The other little. tells us the record
whom as profes- together had traveled Cassell, and McLaughlin, murder Hussey three months before for criminals sional after months seven for travel together continued car Chrysler van the Travel-All used They murder. to Fayetteville Dallas men came from needed. All four committing purpose for the avowed vehicles in the two three of At least the motel. at They stayed together crime. themselves others, familiarized them, and two Renton four, or All at Rogers. store layout Campbell-Bell stopped Hussey van when three were two or at the least in the lead car. it; presumably fourth man so the both they traveling together, vehicles must two of his At least flashed lights. after stopped execution, a second at because Hussey’s four were present the burned drive the miles from had to used to vehicle Inn. Holiday van back to *8 experienced to that these possible suppose is hardly had radioed a Hussey descrip- that suspect
criminals did not They other vehicle. tion of the van and perhaps Hus- that probability by murdering acted upon apparently its in area where the Travel-All a wooded sey, by burning chance, and by immediate came about discovery almost Oklahoma their to take the Chrysler out of going way to trade likely knew the car and might the one dealer who Renton and Cassell must for it a Sunday morning. on did, as as City they quickly acted in haste reach Oklahoma for must have in taken some time to find a secluded spot unfamiliar that to murder to build a fire territory, Hussey, van, motel, effectively burned the to return to the pack up leave, and and to drive some 200 miles to City. Oklahoma That both men were as dispose anxious to of the Chrysler soon possible implies that the lead car on the stopped not an as stated Chrysler, was the off-white Ford highway Gillman.
We have held that relevant include the circumstances an presence crime, of accused in to the proximity opportu- nity, association with persons involved manner suggest- ing joint participation, of possession instruments used in the commission of the State, offense. Ark. Jackson 406, 409, S.W. from the scene of the Flight crime has as a long circumstance regarded corrobora tive Stevens of other of guilt.
S.W. 186 (1920). Every one those relevant circumstances here, shown the fact plus Campbell-Bell burglary planned advance and the probability abduction and murder of Officer prompted by the thieves’ possession of stolen in the van. goods
To sum our up, substantial evidence rule in a case on depending circumstantial evidence means simply the proof must go beyond a choice presenting jury so evenly balanced must finding rest not on guilt but on That conjecture. situation this case. To the contrary, defense counsel have not in the course anof excellent brief ventured to any formulate theory crime by which Cassell might man, as an innocent emerge wrongly accused of a murder which he had no Nor part. have we been able to reconcile such a with the theory evidence. The found jury apparently criminal complicity Cassell’s part, because one of the circumstances mitigating unanimously specified by was that jury the capital murder was committed another person that Cassell an The evidence accomplice. supporting verdict of guilty amply satisfies the requirement that it be substantial. compar- five for reversal are without
The other points First, it is argued discussion. little require difficulty able reread reporter had the should have court court *9 its deliberations when the testimony jury interrupted certain a of for transcript a to asking send note judge to Gillman, Darrell Charles Frank Perry, Harp, a witness defense Johnson, being the last-named Larry a 20 he saw Springdale that on December who testified men, three van, occupied by Texas license having tags, blue identified from the witness driven a man by and being denied the request The court McLaughlin. photographs a it take to the that would a jury transcript, explaining for other obstacles. mentioning time transcript to long get to It is that the court was statute required by insisted 69 § in view Ark. Stat. Ann. grant jury’s 43-2139 request, of an for want point, We cannot this consider (Repl. 1977). 781, State, S.W. 2d v. Ark. 606 Wicks below. objection took down reporter judge’s The court (1980). of any there is no record request, remarks but denying The reference to only defense counsel. by objection was in the oral possible prosecutor’s argument objection The trial presented. when a motion for a new was being was at the trial bar then said there a discussion prosecutor present. in; evidently counsel when the note came so objected if they sure said, “I’m not later: also prosecutor I think but... or not. there was ... some sort of an objection, I all the can’t recall what For record exactly transpired.” shows, have been to the may possible granting the objection not to its denial. That attitude request, jury’s might counsel, well have been since two taken defense the prose- witnesses named testified for had jury In event, cution. an there no any without basis objection for appellate review.
Second, defense “death argues counsel qualified” is more to convict. There was jury prone to support that contention when in the trial made motion court. We adhere our that the previous ruling argument State, 341, merit. 2d without Miller S.W. (1980). He trial.
Third, denied a speedy Cassell was not terms of court 10, The next four arrested on November 1978. When the 1. 1, 1, October 1, July on January April began 10, would which on September tried case was set to be permissible, third term and therefore within the been moved (b), 28.1 and Cassell Rules Criminal Procedure 30.1 that there trial court found been dismissal. if not there had but even delay, of excusable periods under Rule (b) only entitled have been would 30.1 Cassell a release to an absolute recognizance, own on his S.W. 268 Ark. Matthews discharge. court our in this Alternatively, argues defendant an incarcerated requiring former statute *10 a rule of laid down terms tried within of court aby supersede could not this court substantive law which rule of procedure a Ark. Stat. Ann. permitting longer delay. statute, however, § That (Repl. 1977). was not 43-1708 substantive law its merely because violation have a might statutes, substantive effect. That is true many procedural such as a statute of or a limitations statute requiring defendant to file an answer within 20 after the service of days summons. In criminal matters substantive law declares what acts are and prescribes crimes the punishment; procedural provides law or regulates steps which one Love, violates criminal statute is punished. Roberts Ark. S.W. 2d (1960). Under that distinction a trial is speedy procedural. statute Fourth, of the Campbell-Bell burglary clearly admissible as relevant both the motive and being prove identity murderers. Uniform Evidence Rule 404 We have (b). already shown that the circumstantial evidence sufficient amply connect Cassell with the burglary. Fifth, when disc number was drawn from the jury wheel, the clerk erroneously copied name of juror 1031 list; from master so the wrong juror was summoned. Also, the names were written a yellow pad before legal transferred to the being jury book. Both were trivial errors and did not to such amount substantial as to be irregularities a basis for a to the entire challenge § Ark. Stat. Ann. jury. (Supp. 1979);Huckaby 39-215 557 S.W. Moreover, inas Huckaby, there not the slightest question about of the list. integrity objections. other No error is shown abstract Affirmed. JJ.,
Hickman dissent. Purtle, Justice, proved The State dissenting. Darrell Hickman, that the had been proved terrible crime committed. did thief. The State professional is no doubt appellant appellant standard this any acceptable legal prove *11 aided in in any way that he or the policeman of killing guilty that crime. the majority in that this case
I am convinced We criminal cases. for of review its standard abandoning substantial there must be rule that should abide defined recently We to support finding guilty. evidence this standard as: and character ... evidence that force of sufficient certainty will, and material reasonable with It or the other. one way a conclusion compel
precision, beyond the mind pass or induce must force Evidence, §4Vol. Ford on conjecture. or suspicion defined also been evidence has Substantial page 2760. fact from basis of a substantial furnishing as ‘evidence inferred; and reasonably can which the fact issue creates merely which not evidence test is satisfied than a to no more which amounts or suspicion to inconsistent equal support scintilla or which gives [Emphasis added.] inferences.’ S.W.
Jones States Jones, Supreme In we referred to the United in criminal cases our Court’s because requirement proof standard. law must meet the United States Court’s Supreme Court Supreme Virginia, The United States Jackson standard U.S. defined constitutional (1979) whether, after the evidence reviewing sufficiency proof rational any favorable to the prosecution, most light found the elements trier of fact could have essential crime a reasonable doubt. beyond there that Cassell mur-
What evidence is “substantial” there that evidence is dered the What substantial policeman? solicited, aided, way in any or encouraged It us. was death? are the before only questions officer’s Those Arkansas, earlier not that Cassell proved Rogers, It was store. Campbell-Bell when Renton visited day Arkansas, even that he was in not proved Rogers, certainty proved any was not occurred. burglary car, his a Chrysler, was there. It was not certainly proved he was in the Travel-All to Renton which was registered stopped Officer This Travel-All was Hussey. stopped hours after the miles burglary twenty It was away. even proved Cassell’s vehicle was at scene where the officer a vehicle. There is stopped at all to connect Cassell to the apparent scene of the murder which occurred several miles from where the Travel-All was stopped.
There car, was evidence that ’65, ’66 or passenger ’67 model, awith “van or whatever” left the vicinity Campbell-Bell store A.M. At about the trial a witness 1:45 said he it was a vehicle. thought Chrysler He based this on the fact he had owned a There previously Plymouth. was ’65 evidence that a Plymouth is no similar way ’65 to Cassell’s car, a Chrysler. ’71 There was evidence that a white Ford passenger vehicle with a Texas license was in front stopped of the Travel-All on the There was evidence highway. that owned a McLaughlin white Ford Texas There tags. was at all that Cassell or his vehicle were present when the officer the stopped Travel-All. One witness said “two or three” people were in the Travel-All. Another saw no one the officer. except
On this evidence the concludes that majority what happened was as follows: them, others,
At least three of Renton and two familiar- ized themselves with the the layout of Campbell-Bell four, them, at All store or at the least Rogers. two of committed that two vehicles used. burglary, being Gillman’s for the that defense indicates two it; or three were in the van when so the Hussey stopped man fourth was the lead car. The two presumably vehicles must have they traveling together, both after flashed his At stopped Hussey lights. least execution, two of four were at present Hussey’s because a vehicle second had to be used to drive the 14 miles from the burned van back to Inn. Holiday possible is hardly to suppose experi- these enced criminals did not suspect Hussey and perhaps of the van description radioed that prob- upon acted apparently They other vehicle. Travel- burning Hussey, by ability by murdering immediate almost its where area All in a wooded out chance, and by going came about discovery the one Oklahoma Chrysler to take the their way trade for likely car might knew the dealer morning. it on Sunday We in Rogers? with Renton the two others
Who were one of them. identified know, was not but Cassell don’t We the burglary? them commit two of only Did all four or two vehicles or four. Were was one know whether don’t area seen leaving Two vehicles used or more? time two hours between What happened together. was the Travel-All were seen Rogers the vehicles that there is the evidence We don’t know. Where stopped? the evidence none. Where is “lead” car? There is was a the highway? vehicles were traveling together the “two” present There is none. Who were vehicle stopped? miles from where was killed several present except anyone There is no evidence *13 he was and that the was killed someone officer obviously the Where is Renton. near a vehicle registered found that the evidence that were Where is present? evidence “two” Holiday to the had to to drive back a vehicle be used second Where is speculation. That is all Inn? There is none. had Hussey radioed suspected criminals evidence that these other vehicle”? “perhaps of the van a description that that acting Where is the evidence There is none. That There is is murdered? none. “probability” all speculation. hint that have may present at all Cassell been only
at the the weak of one witness burglary was looked out his window at A.M. and saw two 1:45 vehicles. before; inwas Fayetteville day
No doubt Cassell Tulsa, Oklahoma, doubt he was with in next Renton that day. evidence indicates Renton and Cassell had in But been partners burglary thievery. do, only can examined,
evidence one is as we are required that Cassell that it to say conclude would speculation in the murder. The any way killed the officer or aided or his vehicle at the abduction place State cannot scene or murder scene. It cannot even conclude four The State’s is short of people present. proof simply our standard and the United States proof required Court’s standard. Supreme
Ours is a system innocence, presumes it guilt; requires the State to prove guilt by competent evidence doubt; a it a defend- beyond reasonable requires nothing ant. It is us to affirm convictions on system requires evidence, the basis of substantial not speculation.
The State no made doubt its best effort to show guilt. Car tracks which could have been made aby thousand different cars were found outside store. The car Rogers could have been Cassell’s or else’s. But where is the anyone there? He proof Cassell was on the may but where is the highway, that he was there? There is no evidence Cassell It this murder. participated understandable a case like why jury this could not bring itself to the law. it apply Under such circumstances is hard laymen to actually believe presumption innocence and that the State must prove guilt beyond reasonable doubt. It was a terrible crime and the jury before a criminal. human to want only lay responsibility for such crime on one who have done might it. But cannot so judges easily avoid this In such cases duty. we must adhere to our rules of the nature of the regardless crime Otherwise, or character of the defendant. the right exist; to a fair trial cannot the law will have no integrity. *14 State, the case of v. majority distinguishes Vaughn 2d S.W. as it well (1972) should. case, Cassell must Applying logic be acquitted. before us is not the character question of Cassell. fact a terrible crime was committed for which someone or several people should We must pay. apply law; we must the test from apply supra. Does Jones that Cassell participated a conclusion evidence compel to pass beyond mind it force the Does the murder? own has created its The majority or conjecture? suspicion find evidence I substantial cannot happened. what script of dissent. I speculation. respectfully such support Purtle, J., in this dissent. joins Arkansas STATEof Dale
Jimmy JORDAN S.W. CR 81-27 of Arkansas Supreme Court delivered Opinion June Cummings, appellant. L. Gordon Fewell, Atty. Gen., Victra L. Asst. Clark, by: Atty. Steve Gen., for appellee. convicted Appellant Justice. Holt, Frank sentence year twenty for which a a firearm
burglary