*1 20 from distinguishable case is clearly
The instant in that case Stewart, because Wawak v. supra, at issue and built house builder house professional Rushes, on the business. It course of his undisputed hand, have builders. not appellants other are professional none, hold that an individ cases, of which and we know cited no it, it, house, and later sells qualifies own lives builds his ual who final alone this reason argu as builder-vendor. For appellants’ if the Moreover, fail even their would fails. argument ment because implied warranty had been builder-vendors Rushes “as when purchases property is waived habitability buyer is.” O’Mara v. supra. Dykema, court committed no error hold that the trial
We and the issues material fact were no there genuine finding Therefore, as a of law. entitled to matter were judgment appellees trial court’s order summary judgment. we affirm the granting Affirmed. JJ., agree. Roaf,
Griffen of Arkansas COOK v. STATE Denaro Shatour S.W.3d 1 73 CA CR 01-368 Court of Arkansas Appeals IV, I, and II Division March delivered Opinion *4 Comm’n, ArkansasPublic Marczuk by: Llewellyn Defender J. IV, Lott Rolfe, appellant. Holt, Gen., Gen., Kent Ass’t Mark G. Att’y Att’y Pryor, by: for appellee.
Wendell L. Cook Denaro Judge. appeals Griffen, as an from convictions *5 murder, theft and misdemeanor of aggravated property. trial in 1) He that the court erred motions for argues denying directed verdict on all declare 2) two witnesses charges; failing and as their uncorroborated tes- accomplices admitting hearsay and 3) instructions the timony; refusing lesser give jury included of and We charges hold felony manslaughter. error, error committed the trial court was harmless any by and affirm. murder, as an
Appellant charged capital and theft of aggravated robbery, connection felony property 13, with a murder that occurred during April Sizzlin’, Western a restaurant located on Parham Road in Rodney brother, Torian, Little Rock. and his were Appellant as employed servers at the restaurant and were on the of the working night incident. It that on the restaurant was undisputed April brother, Cook, “Buck,” robbed their by Keyono also known as and Nichols, friend of Frank David Barnes. appellant’s, restaurant, manager was shot and killed during robbery. Cook and Frank Barnes Keyono were former employees 13, Frank, the restaurant. On the evening April Rodney Barnes (Frank’sbrother), Nakia (Frank’s Hall Tim Dil- girlfriend), lard, Franke’s, and at Keyono met another restaurant located'on Parham. drove Rodney car and Keyono Frank drove his own car. had a and a and Keyono mask indicated gun that he However, to rob Franke’s. going abandoned that plan because he concluded the area was too well-lit. Their then group went to Western Sizzlin’.1 and testimony by appellant’s co-workers other witnesses
established that the at arrived group restaurant before shortly closing. went outside and times, talked to two Keyono and at one motioned for them point to come in. and Keyono Frank entered the restaurant subsequently through the back door took an undetermined amount of in a money bank later bag. and went to dumped gun Frank’s house to divide the money. 1 The witnesses’ regard conflicts with to which rode in which testimony car parties to Western Sizzlin'. However, seems clear that after the testimony robbery, Rodney
Barnes at remained restaurant, of these together rest individuals left in Frank’s vehicle. *6 26 trial, testimony. to Dillard’s the objected
During appellant that after testify to have Dillard spoke The State sought time, car into his and stated back the second got with appellant inside and that him was set told that everything up that appellant that this the was unlocked. objected back door on the basis the trial overruled his and court objection hearsay, of Evidence it under Arkansas Rule that was admissible the during as a declaration of 801(d)(2) pro- (v), co-conspirator of a crime. gress evidence, moved
At the close State’s appellant the of Dil- directed on all that testimony verdict charges, arguing and the State lard and Barnes was not corroborated Rodney the had no to connect with evidence independently to the court declare Dillard Barnes crime. He also asked that the as a of law. The court reduced be matter trial accomplices However, the to a misdemeanor. theft of felony property charge as to rule Dillard and Barnes a matter court declined accomplices law. It denied the motions for a directed verdict with of also thereafter testified. to the charges. Appellant respect remaining the or execution of He denied planning any participation he tried to brother and asserted that robbery discourage from the He renewed his Cook) (Keyono committing robbery. the the close of all of the evidence and motions at requested trial the the lesser-included offenses of rob- court instruct on jury the trial court denied bery felony manslaughter. Although motions, the lesser of these it an instruction on provided charge murder. first-degree found as an to aggra- jury appellant guilty and to murder
vated the reduced of charges ten the and theft of He was sentenced to serve on years property. ten run murder on years charge, aggravated charge on theft with the murder and six months consecutively charge, of to run with other two charge concurrently property for a total charges, twenty years prison.2 ruling regard the trial The State filed a notice of with court’s cross-appeal sustaining objection during jury a voir dire State question posed by
I. Summary Testimony at restaurant Kyona Hyder working night unlocked, She noticed the back doors were which robbery. *7 Frank at the she said was unusual. She witnessed side running the the the toward back of When she asked building building. restaurant, if Frank he saw to the back of the running appellant told Frank to her that had use the restroom. also appellant Hyder saw Frank and inside the restaurant the in closet Keyono utility restaurant, the back of the near that the office. She said manager’s had a mask on ski head. When she asked what Keyono top were for her be said they Keyono to She doing, gestured quiet. that asked she if he saw back there. said appellant Keyono Hyder later in the told her that he had evening appellant thought Keyono killed Nichols. Because had an for appellant apparent propensity he showed that his Hyder hands were she joking, so shaking, would know he was “for real.” She testified that either appellant brother, Torian, or his told her before she left the restaurant not to the say anything regarding robbery. Arnold, coworker,
Sharronda another testified that she saw and Frank Barnes and Keyono in two cars. pull up park separate She stated that Nakia and Barnes were also with Rodney Frank. Arnold, outside, to Torian went According then came back in and talked to in, When Torian came appellant. back he that said to rob the and Keyono asked going Torian if he place robbed would “snitch” on him. place anyone Arnold further testified that after Torian came back inside and talked to then went outside and appellant, appellant talked to for ten Keyono minutes and hand approximately made motions that to her to be appeared “Come in.” indicating, then and returned walked to the back of the restaurant. Arnold stated that told her restaurant, were to appellant they rob but going he was and she that, laughing After thought she kidding. saw and Keyono Frank walk to the side of the where the building back doors were located. She heard some loud she but bangs, selection. argument However, State offers no regard this its brief. we Therefore, do not address this issue. went toward When she had trays. that someone dropped
thought toward restaurant, saw running she Keyono the back She said direction. saw Frank opposite door and going back mask and was carrying green a black was wearing that Keyono Arnold like a that looked gun. carried something money bag the restaurant came inside Barnes that Rodney further stated Nichols. She said for were looking while employees were Nichols. While they had killed her that told they appellant that she her to tell the told police appellant waiting police, know did not anything. Nakia, he, Frank, rode and Keyono Dillard testified
Tim in a arrived Barnes Rodney restaurant together idea to that it was go Dillard stated Keyono’s vehicle. separate his car and out of He said that got Sizzlin’. Western times and came outside two then talked Rodney, time, back inside After the second Keyono got talked to Keyono. *8 that the back door told him car and said that the appellant Then, in, business was slow. Keyono clear to and it was go open, the back of the restaurant. and went into and a mask gun got the that Frank came out through testified Dillard further car, shot he said that Keyono Frank into his door. When got front to drive but pick up Frank to away, stopped someone. proceeded the and was out of the restaurant waving who had come Keyono, the car stated that Frank behind him. Dillard stopped bank bag 15th the in a sewer on who gun and Keyono, dumped up picked Street, After Fried Chicken. Keyono behind Church’s and Pulaski the car started had trouble again. getting gun, they dumped to the car the car while others said that he steered pushed Dillard then the car started again, they it When they got started again. get Dillard, to According Frank’s house to count money. went to and counted out approxi took the out bag money Keyono $2,100. Frank a $1,800 that He said Keyono gave to mately denied that he the rest. Dillard and sum” of money kept “lump to “take that threatened He said Keyono received money. any He also said what who told happened. care” of anyone police “handle” him he was to told him that going that later appellant he “snitched.” because with he rode to Western Sizzlin’ Barnes testified that
Rodney in a that Frank arrived car. He said separate Keyono told him first and He that Torian came outside Keyono car. said that the restaurant. stated that were to rob Rodney they going to seemed agree Torian tried to Keyono discourage Keyono that came outside that it was a bad idea. said Rodney appellant that the man- then and told that the back door was Keyono open, and to on in. was in the office go ager counting money, and “did not to was “all According Rodney, Keyono hyped up” hesitate” after with him. He said Keyono got spoke appellant in the back with a mask and a and went building, gun, later, fifteen minutes Frank Frank thereafter. About following and left in his car. At this came out front doors Rodney point, inside, him, went inside. He said when he told got appellant stated, “Don’t testified that Arnold “If we say nothing.” Rodney robbed, David will come out and call the He just got police. dead,” be to which “I don’t care. We might appellant responded, to our rent.” got pay that he further testified
Rodney accompanied Keyono Andrew house a O’Conner’s few days prior get stated, a mask. “He he can mask so rob some- Rodney got However, I knew Buck was to rob body. going somebody.” mask, testified that never saw the or the because appellant gun were in the trunk when came to talk to they outside Keyono. 14, 1999, Williams testified on
Joseph early April Torian, house and Rodney appellant, at^his Barnes came over. Williams testified Rodney requested *9 share of the money. Hall,
Nakia Frank that Frank and Barnes’s testified girlfriend, Tim her from work at K-Mart that that She said picked up night. Frank, Dillard, when the car after the stopped the car it started She also stated that Keyono pushed get again. Dillard was when the was counted. present money other witnesses established that a
Testimony by money bag checks stolen and a mask were containing during recovered at Interstate Park and the was recovered in a storm gun drain at 15thand Pulaski. Erickson,
Dr. an associate medical examiner from Stephen the Arkansas Crime testified that Nichols received Laboratory, wounds, two one in the chest and gunshot one which went wrist his abdomen. He through right said that Nichols’s marks, wrist had right that it was within stippling six indicating inches to one foot of the However, when it was gun discharged. the bullet wound to the chest showed no evidence of close range of fire. Erickson could not state whether the definitively stippling marks on Nichols’s wrist indicated that he was in an aggressive defensive when the was posture gun discharged. also testified. He denied
Appellant participating any way or the murder. He admitted that he knew the back unlocked, doors were but he assumed that the knew manager they were unlocked. He testified that when he went outside the first time, he told that he would be out after Keyono rolled some they more silverware. He while said that he Arnold, talking Torian came in and told him that if Keyono wondering they would if robbed the get caught they restaurant and that suggested talk to him. appellant go said that he told Appellant Keyono he would and that get caught should leave his car there Keyono and leave the He maintained that at premises. this he went point, into the back of the store to talk to one of the dishwashers did not see more. said Keyono any that after he Appellant talked to dishwasher, he told Arnold that “and them” Keyono were about He “talking robbing admitted he told place.” Arnold not to tell because he assumed anyone his brother would into trouble get about by merely talking committing robbery. He also admitted that he heard the and told Arnold gunshots and Frank had thought Keyono killed Nichols. remained at the restaurant
Appellant until after the police home, came. On his way him Keyono to come to paged Wil- Joe liams’shouse. house, When he entered Williams’s he said him, asked “Did dude die?” denied threatening anyone and denied that he could telling Keyono in the back of the slip
31 he was the “hero” restaurant. To the asserted he contrary, he tried to because prevent robbery.
II.
Evidence
Sufficiencyof
no
first
substantial evidence
Appellant
argues
his convictions because the
evidence used
supports
only
against
him
was based on
uncorroborated
Barnes
testimony
Dillard, whom he asserts
have
should
been declared
as
accomplices
a matter of law. We consider the
of the evidence
sufficiency
before
order
errors in
a defendant’s
evidentiary
protect
right
be
See,
State,
free from double
Goodmanv.
74 Ark.
jeopardy.
e.g.,
1,
review,
degree took in furtherance anof place underlying He felony, was also aggravated robbery. charged with misdemeanor theft. holdWe that substantial evidence sup- acted ports as an each committing these crimes. he,
A commits if with person purpose or felony misdemeanor theft or committing threatens to employs force another employ physical See Ark. Code Ann. upon person. A 5-12-101(a) commits (Repl. 1997). rob person aggravated § if he commits and he bery is armed with a deadly weapon armed; word or conduct that is so or inflicts or represents by *11 another death or injury inflict serious upon attempts physical Ann. 5-12-103 1997). Although SeeArk. Code (Repl. person. § that the to the actual we hold there were no witnesses the evidence that various witnesses’ substantial testimony provided were Various saw take Keyono gun armed. witnesses culprits restaurant, noises, the the two heard loud into witnesses banging killed, testified that was shot and and witnesses Keyono manager sewer, Further, the in a it was later recovered. where dumped gun out the restaurant a money seen of running Keyono carrying Therefore, later from money money bag counting bag. an took substantial evidence aggravated robbery supports place. evidence for first-
This same conviction supports 5- murder. Pursuant Arkansas Code Annotated section degree 10-102(a)(l) 1997): (Repl.
(a) A commits murder in the first if: person degree (1) (1) alone or with one or more other Acting persons, commits or to commit a and in the course of and attempts felony, therefrom, furtherance of or in immediate felony flight he or causes death cir- any of under person cumstances extreme indifference the value of manifesting human life. Nichols,
It is in this case the res- of undisputed manager taurant, was killed of during robbery attempt. testimony the witnesses Cook shot Nichols and is suf- supports ficient to that the demonstrate offense of murder was committed. also
The evidence is sufficient to the reduced support of theft. misdemeanor Pursuant to Arkansas Code Anno charge tated section 5-36-103 (Repl. 1997):
(a) A commits if theft of he: person property over, (1) takes or exercises Knowingly unauthorized control in, or an unauthorized an interest makes transfer of the property of with another the owner person, purpose depriving thereof; or
(2) obtains the of another Knowingly property person, by threat, with the purpose depriving owner deception thereof. is a
(b)(4) Theft Class A misdemeanor if property value $500 or less. property *12 Several witnesses testified that a had money bag Further, when left the restaurant. Dillard testified that Keyono $1,800 removed the from the and counted between money bag $2,100. and Based on this the trial court found could testimony, have found that the evidence was sufficient to properly prove an amount $500 under was We taken. find no error in this regard.
The next issue is whether there was sufficient evidence to find as an to appellant guilty these crimes. An accomplice is one who accomplice in the of commission directly participates who, an offense or with the of or purpose promoting facilitating aids, offense, aid, the commission the of to or to agrees attempts aid the other or person offense. planning committing See Ark. Code Ann. 5-2-403(a)(l)-(2) When 1997). (Repl. §§ two more assist each other in the persons commission of crime, each is an and is liable for accomplice his own criminally conduct, conduct as well as that of the other even person’s though he did not take in act. personally See v. 17 part every Phillips Ark. 703 S.W.2d App. (1986). relevant factors the connection of an determining to crime are the crime, of the accused in the of presence the the proximity oppor crime, to the commit tunity and association with a person involved in the crime a manner of suggestive joint participation. See id.
Here, the evidence in the viewing favorable the light (as State the at trial) the prevailing party deference to giving of jury’s apparent witness there findings was over credibility, evidence that whelming acted as an accomplice. Appel brother, lant’s of one the drove car to culprits, appellant’s crime scene. verified for his brother back door was slow, informed him open, business was the man and that he ager should come in. He counting money, not to talk to the or warned other witnesses police. also instructed would be that the he believed Finally, proceeds facts, benefit, we the rent. On these used for his partially pay err in motions that the trial court did not denying hold each verdict with for a directed respect charge.
III.
Liability
Corroboration Accomplice
is that the trial court erred
next argument
Appellant’s
to be
and in
in not
Dillard and Rodney
declaring
accomplices,
A conviction
their uncorroborated hearsay testimony.
admitting
of an accom
cannot be had in
case
testimony
any felony
upon
evidence
to connect the defendant with
unless other
tending
plice
the commission of the offense corroborates
testi
accomplice’s
Ann.
The cor
16-89-111(e)(1) (1987).
See Ark. Code
mony.
§
it
shows that the
roboration is not sufficient if
offense
merely
thereof.
Ark.
Ann.
committed and
circumstances
Code
the suffi
16-89-111
The test
(e)(1) (1987).
determining
§
whether the
evi
evidence is
remaining
ciency
corroborating
dence
establishes the crime and tends to connect
independently
*13
State,
411,
the accused with its commission. Meeksv.
317 Ark.
See
First, we note that
offered no
to
appellant
objection
Instead,
when
testified.
Rodney’s testimony
Rodney
merely
and
waited until the close of the evidence
that the court
requested
Therefore,
declare
to be an
he waived his
Rodney
accomplice.
in this
Harris v.
to
objection Rodney’s testimony
regard.
506,
262 Ark.
Second, even if the trial court erred in not and Dillard to be the error is declaring Rodney accomplices, harmless, because the evidence is sufficient to remaining indepen establish the crime and to connect with its com dently appellant mission. We affirm where evidence of may guilt overwhelming and the error is SeeBledsoev. 39 S.W.3d slight. true that the evidence not cor- It is does (2001). remaining robórate made the statements attributed inculpatory However, to him Dillard and Rodney. testimony by Arnold, and the witnesses Hyder, appellant, remaining indepen- corroborates the evidence that the offenses dently establishing were and to the committed connection establishing appellant’s commission of those offenses. because the evidence is sufficient
Similarly, remaining the trial committed court harmless in support charges, .error Dillard’s aas admitting testimony co-conspirator pursuant Arkansas Rule of Evidence (2)(v) without him to 801(d) declaring be co-conspirator.
IV. Instructions Jury as an originally charged capital murder and He felony was found of aggravated robbery. guilty aggravated robbery reduced of mur- charge first-degree der. His final is that the trial court erred argument denying instructions on request the lesser included jury offenses rob- He maintains that the bery felony trial court manslaughter. erred because there was from evidence which a could have jury found him lesser these We guilty charges. disagree.
A. First-DegreeFelony Manslaughter trial, At instructions on appellant proffered fel- on the ony that a manslaughter could have theory determined jury could have acted negligently Nichols’s causing death because there was evidence to that he was shot support when the gun discharged during struggle.
A trial court’s
on whether to submit
ruling
jury
instructions will not be reversed absent an abuse of discretion. See
*14
State,
216,
Hill v.
344 Ark.
36 denial, for instructions there no rational basis giving is
complete refuse is correct to and the trial court offenses on lesser-included 64, State, Ark. 852 S.W.2d v. 313 instructions. See Vickers such 276, 470 State, 879 v. 46 Ark. S.W.2d Martin App. 787 (1993); (1994). murder if he commits robbery commits
A person capital he or an causes of the accomplice in furtherance extreme under circumstances manifesting death any person 5- Ark. Code Ann. the value of human life. See indifference to § first murder in the A commits 1997). person 10-101(a)(l) (Repl. and in the course of and if commits he felony, degree therefrom, he or in immediate or flight furtherance felony under circumstances causes the death of any an person accomplice life. See to the value of human extreme indifference manifesting Ann. commits A 5-10-101(a)(l). felony Ark. Code person § and in the course of and if he commits a felony manslaughter he or or in immediate therefrom flight furtherance or felony the death of any causes person. negligently accomplice Code Ann. 5-10-104(a)(4). Ark. State, 13, in Britt 38 maintains that v. Court held that felony Arkansas (2000), Supreme
S.W.3d 363 murder is a lesser-included offense of felony manslaughter capital murder, and be submitted as a lesser can felony first-degree if the evidence would support finding instruction presented defendant, Cole or an acted Citing negligently. State, v. Ark. 671 S.W.2d (1984), argues man App. murder, murder that to sustain the charge capital — must two states the State prove culpable felony manslaughter, death and one for the that occurred. one for the underlying felony contains essentially He further asserts felony manslaughter as it relates but has a lower degree same language, culpability death. First, he denies argument unpersuasive.
Appellant’s crime; therefore, there is no rational basis involvement any on the court to an instruction lesser-included trial provide Second, v. Vickersv. Martin offense. See supra; supra. notes, has the Arkansas Court recently as State Supreme
37 in Hill v. rejected argument appellant’s In Hill, S.W.3d 751 our held (2001). court supra, supreme an adds additional element to murder felony manslaughter felony therefore, to the of the murder itself and relating perpetration not a lesser-included offense of murder or capital first-degree murder. Hill,
In the defendant was with charged aggravated robbery defendant, murder. The Hill like attempted capital appellant here, received a instruction on jury murder and capital first-degree murder. The Hill defendant also instruction on requested jury on the felony that he had manslaughter caused theory negligently the death of the victim. See id.
The Hill court affirmed the trial court’s refusal to issue the instruction on that the felony manslaughter, holding only mental state where the murder culpable is committed a during relates to the crime of felony and not to the underlying felony is, murder itself. That to sustain a conviction for murder or capital murder, the first-degree felony State must the mental only prove state to the Therefore, relating id. underlying felony. Hill court found that felony which a manslaughter, death is negli committed in the gently course of a a is not felony, lesser-included offense of murder or capital murder because it adds an — additional element to the crime the mental state charged relat to the commission of the ing murder. See id. The Hill court also stated that felony did not manslaughter represent less serious to the victim injury because death still results. the Hill Finally, court stated that did felony not manslaughter lesser represent mental state because the culpable mental state to rob perpetrate bery is same for murder and capital felony manslaughter.3 Therefore, Hill, was not pursuant entitled to a appellant jury instruction on the that his theory acted negligently.
Finally, reliance Britt v. is mis- upon supra, placed. defendant in that case was with charged attempted 3 Moreover, notes, as the State urges to hold as would lead to an absurd result, because a negligently who caused the person death another would be person guilty of a Class C while the only armed robber who felony, does not cause death would guilty of a YClass felony. *16 He murder. argued murder and first-degree felony
first-degree on second- instructions erred not trial court providing that did not state The Britt court murder and manslaughter. degree to murder is entitled felony with a defendant charged court merely The Britt manslaughter. instruction on felony an for the instruction rational basis that there was no giving found defendant acted no evidence that the there was case because that disturbance, or acted or recklessly extreme emotional under negligently.4 authorities, hold that the trial court we
Based on these an on instruction did err in denying request not felony manslaughter.
B. Robbery Aggravated an did err in we that the trial court not denying hold Finally, the lesser-included offense robbery. Appellant instruction on a an instruction because jury he was entitled to such maintains that a had that he did not know gun. could have found denied any The State counters participation therefore, on a charge an instruction lesser-included robbery; where it is undis- further asserts that warranted. The State not the lesser-included that an took armed robbery place, puted State, 283 is v. not necessary. Young instruction on robbery 435, (1984). S.W.2d 329 Ark. 678 a with the intent of occurs when
Robbery person, to uses or threatens theft or resisting apprehension, committing someone. See Ark. Code use force upon immediately physical A commits 1997). 5-12-102(a) Ann. section (Repl. person and is when he commits robbery offense of robbery aggravated to his victim word by armed with a deadly weapon represents Ann. 5-12- that he is armed. See Ark. Code or conduct § is a It clear under our case law that robbery is 103(a)(1) (1993). 4 holding defendant who that the Biitt However, we note presented implies in Hill might to instruction. While the court evidence be entitled such an such supreme it overruling Britt, Hill was decided Britt, not that it because did state subsequent is it would be overruled Hill, extent that Britt inconsistent with would seem that to the implication. State,
lesser-included
v.
offense
SeeLovelace
aggravated robbery.
276 Ark.
The State’s reliance on v. is Young supra, misplaced. Our law that a as an clearly recognizes person charged accomplice be entitled an instruction on the aggravated may lesser-included offense of even it where undisputed See, that a was used. Savannah v. weapon e.g., App. 161, 645 S.W.2d (1983). Although defendant’s liability may be limited to that of to mere if the other *17 without defendant’s commits person, a knowledge, robbery State, a see Savannah v. that is not the case using weapon, supra, here. did not assert that he in a agreed participate him, and robbery that unbeknownst to and Frank used a Rather, he denies and all gun. in the any participation and even that he is a argues “hero” because he tried to prevent robbery. noted,
As it is previously reversible error to refuse an to give instruction on a lesser included offense when the instruction is evidence, even the by supported and we will a slightest affirm trial court’s decision to exclude an a instruction on lesser-included offense where there is no rational basis for giving instruction. State, standard, See Britt v. Given this supra. we hold that the trial did court not err in instruction refusing give on the lesser- First, included-offense of robbery. court did not err because denied in the any See v. participation Vickers robbery. State, Martin v. supra; supra.
Second, reliance v. appellant’s upon Waggle 198, 901 App. S.W.2d 862 (1995), In misplaced. Waggle, defendant admitted that she in the participated How- robbery. ever, she denied that she knew the defendant had a The gun. store, defendant aided her Waggle in a boyfriend robbing going into the store two times on the pretext and purchasing candy, then to her reporting how boyfriend customers were in the many store. See id. After he exited the store and bran- waving money a she dishing with his orders pistol, complied to drive The away. defendant maintained that she did not know her why boyfriend wanted her to into the store and on the go number of cus- report on robbery an instruction found that court
tomers. Waggle that she assisted could believe because a jury was warranted that her unaware but that she was the robbery, commission a id. possessed gun. boyfriend here denied the defendant in Unlike Waggle,appellant Therefore, court had the trial in robbery. any participation instruc for a lesser-included motion rational basis for denying its did not abuse discretion. on and tion Affirmed. Roaf, JJ., agree. Vaught, C.J., Jennings,
Stroud, Neal, JJ., concurring Robbins, in Pittman, Hart, in and dissenting part. part concurring part; dissenting Robbins,
John B. Judge, the trial court commit- I with majority agree part. verdicts, directed motions for error in ted no denying appellant’s as and in admit- witnesses to declare two accomplices in refusing to instruct on felony and in jury their testimony, refusing ting However, I with argument agree manslaughter. for the instruction court erred in give jury the trial failing *18 Therefore, with the I concur offense of robbery. lesser-included to convictions as an in accomplice affirming majority I but theft of murder and misdemeanor property, conviction for aggravated robbery. would reverse and remand his denied that because The holds appellant completely majority crime, to not entitled a lesser- in the he was involvement any I Stated affirmatively, on robbery. disagree. included instruction to to criminal a defendant confess this would rationale require offense be a lesser-included in order to entitled to involvement law, not the law is and should be such not instruction. Surely, if it is. State, v. 50 Ark. argument supported Waggle
Appellant’s
198,
In
was
that case the
Waggle
supra, here appellant denied I any do not participation that such a robbery. agree because, distinction exists while the in each case appellant gave from which a testimony could infer jury criminal neither activity, admitted indicates, crime. As the any majority while opinion v. appellant admitted Waggle supra, entering customers, convenience store to count she maintained in her testi- that she did mony not know her why boyfriend had asked her to case, do this. In the instant admitted some involvement in that he admonished others withhold information about the and was not truthful when questioned by but police, he, too, denied any willing participation robbery.
In Brown v.
42 murder, of as a convicted principal
the was appellant murder, and the denied committing each completely appellant lesser the commission of a to evidence there was no support State, it was State, and Martin v. supra, v. crime. In Vickers supra, situation,” basis to no rational give so there was an “all nothing homicide offenses. on lesser the instructions proferred situation as “all or hand is far from an nothing” The case at was Not only conviction. robbery aggravated regards appellant’s armed brother was that knew his a lack of evidence there appellant he did affirmative testimony there was to the robbery, prior that, told indicated after Barnes appellant not know. Rodney back in the res- went back door was the open, appellant was committed. until after taurant and remained there not have seen could further testified that appellant Rodney had from the trunk after it was retrieved appellant because gun the restaurant. reentered should be given on a offense
An instruction lesser-included evidence, even slightest the instruction is by when supported an instruction a court’s decision to exclude but we will affirm trial basis for offense if there no rational giving on a lesser-included State, 415, 47 259 S.W.3d the instruction. Ellis v. case, evidence” more than “slightest In this there was (2001). to was an robbery, finding appellant support determines credi- alone but not robbery. jury aggravated evidence, witnesses, to be given of weight bility apportions and inconsistent testimony resolves conflicting any questions 137, 592 (1998). Ark. 968 S.W.2d evidence. Parker v. 333 a rational basis for In this case there was giving Barnes, if believed testimony Rodney instruction because the while have conspired demonstrated that may appellant jury, with a his brother was armed unaware that deadly weapon. court’s Doby am not unmindful of our opinion
I supreme where (1986), appel- Ark. 720 S.W.2d v. convicted of and was lant denied lesser-offense instructions and theft with intent to deliver a controlled substance possession However, testified case by receiving pistol. *20 that he was unarmed and was not in when he possession drugs was attacked and in court affirming, supreme police, stated: rested his entire defense on his Doby credibility against matter,
of the
So
a
officers.
as
it came down to
practical
whom
should the
believe. There would
jury
be no rational basis to find
the officers lied in
in this case. Their
part
testimony so sharply
conflicted with
it
that would not be
Doby’s
reasonable to expect
a
jury
choose and come with a
pick
of a lesser
up
finding
offense when to do so would
a
require
finding
Doby was a
liar and the officers liars in
If Doby had admitted
part.
possessing
it
drugs,
make sense to
might
require the
charge
lesser
offense. But his defense was that he was
innocent of
entirely
any
crime;
Therefore,
possessed
he
nothing.
had
jury only
one
decide,
question
whether
as
guilty
charged.
State,
v.
412,
290 Ark. at
Doby
In a there is my material distinction between v. Doby and the case at bar. The supra, instant case does not present a situation where the is left to jury decide between two sharply evidence, accounts. There was conflicting in the form of Rodney Barnes’s testimony, was neither innocent entirely nor entirely guilty.
In v. Savannah 645 S.W.2d App. we held (1983), that where the evidence showed that appellant aided or advised another in planning a but committing robbery that the other person committed the greater offense of aggravated is limited to liability lesser offense of rob- was, Because there bery. minimum, at a evidence slightest that Denaro Cook aided in but an committing aggra- vated committed, was thereafter I would hold that the trial court abused its discretion in denying request jury instruction on the lesser-included offense of robbery. in this JJ., join
Pittman, Hart, opinion. Neal,