*1
Nathan Arkansas, Appellee.
STATE 08-1058.
No. CR of Arkansas.
Supreme Court
May 2009. *4 the Evidence Sufficiency
I. evidence, of the State’s At the close for a verdict moved directed present the State failed grounds that convictions support sufficient kidnapping ^capital murder and on the argued he that Al- Specifically, charges. Powell, the two Mariah bert Reed and against Appellant, who testified witnesses a matter of law. accomplices were as that Albert Reed was trial court ruled as a matter of law but submit- Mariah Powell *5 question of whether ted the accomplice jury. Appellant to the anwas testimony of the accom- that the argued plices had not been corroborated inde- linking Appellant to the pendent evidence Appel- denied crimes. The circuit court Following motion. lant’s directed-verdict deliberations, found the kidnapping and two guilty of two counts of capital counts of murder. Appellant renews his appeal, On Rock, appellant. Little for Luppen,
Bill sufficiency the to the of evi challenge he asserts that the Specifically, dence. Gen., McDaniel, by: Att’y Eileen Dustin denying his motion circuit court erred Harrison, Att’y Gen., Deputy appel- for W. because his conviction for directed verdict lee. accomplice upon uncorroborated was based testimony. a for directed We treat motion IMBER, ANNABELLE CLINTON sufficiency of challenge to the verdict as a Justice. Ark. v. the evidence. Boldin County jury Appel- | ,A Pulaski convicted (2008). reviewing In of of two counts lant Nathan Gilcrease sufficiency evi challenge a to the of the kidnap- of murder and two counts capital dence, the in the court views this assault, ping abduction and murder for the to the and con most favorable State light men, of Sean Johnson young two supports only the evidence siders to life He was sentenced Monte Johnson. evidence is that verdict. Id. Substantial Thus, parole. we imprisonment without is of force and evidence which sufficient pur- over the instant case jurisdiction have will, cer that it with reasonable character l-2(a)(2) R. Sup.Ct. suant to Ark. way or the tainty, one compel conclusion for re- eight arguments Appellant raises other, resorting speculation or without double-jeopardy of con- versal. Because conjecture. Id. cerns, challenging the suffi- point, his fifth earlier, evidence, was convict- As stated of the will be addressed ciency kidnapping of and two 107 ed of two counts first. Grillot Arkan- capital of murder. Under counts law, if, kidnapping suspicion person guilt sas commits insufficient to corrobo- | ^consent, person accomplice’s testimony. restrains rate an “without person another so as interfere substan- The trial court concluded Albert liberty with tially person’s with the other Reed was an as a matter of (3) Facilitating of ... purpose law. Albert Reed he testified that wanted any felony flight commission of after the up” “beat Monte Johnson because (4) felony; Inflicting physical injury upon happened Monte an ex-boyfriend § person.” the other Ann. 5- Ark.Code girlfriend Reed’s Mariah Powell and he ll-102(a) (Repl.2006). person A commits suspected seeing them of again. each other “(4) capital premedi- murder if [w]ith Reed further testified that he knew Mari- purpose causing tated and deliberated ah taking Monte Johnson and his person, person the death of another cousin Sean Johnson to a house on Reck any causеs the death person.” waiting Road where Reed was in the back- 5-10-101(a)(4) § (Repl.2006). Ann. Code Mariah, yard. When he saw Sean and up Monte drive house Monte’s accomplice testimony When house, white Chevrolet and enter the verdict, reaching considered Arkansas went inside house and walked into the provides person law that a cannot be con stayed periodical- bedroom where Mariah upon victed based of an ly. At *6 point, that he Appellant saw “unless corroborated other accomplice emerge man, from a bathroom and another tending evidence to connect the defendant Williams, jump Cameron out of a closet. ... with the commission of the offense.” Appellant Both wearing and Williams were 16-89-lll(e)(l)(A) § Ark.Code Ann. (Repl. Appellant masks. was armed with a .22- 2005). Furthermore, “corroboration is not caliber rifle and Williams had a .38-caliber merely sufficient if it that shows the of revolver. As soon appeared, as both men fense was committed and the circum Mariah ran out the house. According to § stances thereof.” Ark.Code Ann. 16-89- Reed, complied he when Appellant direct- 111(e)(1)(B) (Repl.2005). It be evi must himed to call Mariah tell her and not to dence of a substantive it nature since must police. call the then Appellant started proving directed toward the connection questioning Monte some about rims that of the accused with a crime not and toward allegedly possessed. Monte When Reed corroborating accomplice testimony. name, called out Appellant’s Appellant be- Stephenson v. 373 282 came and enraged decided to kill Monte The corroborating evi Appellant and Sean Johnson. and dence standing need not be sufficient alone Williams ordered both men to strip down. must, conviction, to sustain the but it inde being taped, After duct the victims were pendent accomplice, from that of the tend placed inside the trunk of Monte’s car. to degree connect to a substantial the ac Reed then drove Monte’s car to Hindman cused with the commission of the crime. Appellant Park while and Williams fol- whether, testimony Id. The test if the is Appellant’s |f,maro SUV, lowed in which completely of the elimi were parked had been the Reck near Road case, nated from the the other evidence they park, house. When arrived at independently establishes the crime and untaped the victims. As Monte and tends to connect the with its com escape, accused to Appellant Sean tried 14corroborating them, mission. Id. The evidence fired several shots at kill- Williams long ing be circumstantial so as it is both men. After the shooting, Reed substantial; merely Tim Mathis asked to him evidence raises called meet Latifah, buy to a .38- wanted Mathis Williams nearby Reed wanted
at a carwash. She fur- Appellant. from then caliber revolver car and help him wash Monte’s ma- seeing Appellant’s at Mathis were ther testified about it. Reed and hide When Reck Road carwash, parked near the Appellant’s men saw roon SUV both to the house night carwash. she went leaving the same house on maroon SUV Likewise, Mariah, Monte. Sean and with testimony largely Powell’s Mariah Tim night, same midnight around except that testimony Reed’s corroborated from Reed to meet Mathis received a call who told her it was Reed she testifiеd to Hindman him at a carwash located close to the Reck take Monte and Sean Johnson carwash, Park. When Mathis drove to argued below that Road house. of the pull out he saw maroon SUV accomplice as a was also an Mariah Powell The State also elicited carwash. The trial court did matter of law. Ap- police who had seen from two officers accomplice as a matter declare her an on numer- driving maroon SUV pellant law, question but submitted in June ous occasions after the homicides an individual to be accom jury. For sum, this In when all of 2006. in one of the engage or she must plice, he favorable to the light viewed in the most Ann. in Ark.Code activities articulated it to connect tends It (Repl.2006). § 5-2-403 upon the commission of the crimes. Based ac that a witness is an prove burden we the circuit foregoing, conclude corrob testimony must be complice whose denying Appellant’s not err in court did orated. Bush motion. directed-verdict case, In this the in S.W.3d it to allowed given struction *7 II. About Cross-Examination whether Mariah was an accom
determine
Prior Plea
knowledge
have no
of wheth
plice, but we
Offer
did in fact make such deter
er the
appeal, Ap
point
For his second
mination.
erred
argues that the circuit court
pellant
light
the evidence is viewed in a
When
Al
allowing
in not
him to cross-examine
State,
Mariah’s testi-
most favorable
plea offer
history
of a
bert Reed about
enough
was
to corroborate
mony alone
by
exchange
the State in
for Reed’s
made
that, upon
testimony. She testified
Reed’s
plea
by
offer
testimony. Pursuant to a
arrival at the Reck Road house with
her
State,
pled Lguilty
two counts
Reed had
to
Reed,
Johnson,
saw
Monte and Sean
she
first-degree murder with a recom
in the
waiting
and Williams
Appellant,
in ex
sixty years
sentence of
mended
Mariah,
According
Appellant
bedroom.
testimony against Appellant
change for his
guns.
armed
and
were
with
Williams
16both
against
Williams. The case
and Cameron
first,
went to trial
and Reed testi
Williams
by the State
presented
Other evidence
Reed, however, refused
against
fied
him.
that the victims’ bodies were dis-
showed
at his trial and
testify against Appellant
in Hindman Park and
covered
sought
guilty plea.
his
The
withdraw
near the bodies were fired
bullets found
request
court denied the
and sen
rifle and a .38-caliber
circuit
from .22-caliber
Shortly
Johnson, who
rode
tenced him to two life sentences.
Latifah
also
revolver.
thereafter,
Mariah,
and
changed
Reed
his mind
Sean
to the Reck Road house with
that,
Monte,
coopеrate
offered to
with the State and
after the homi-
testified
point,
At that
cides,
testify against Appellant.
overheard a conversation be-
she
no
with the
but Reed
According
there was
deal
Appellant and Williams.
tween
hoping
testimony against
that his
Ap-
Evidentiary rulings are a mat
ter
pellant would result in a
of discretion
only
reduced sentence.
and are reviewed
for
abuse of that discretion.
Taylor Taylor,
He testified at
trial
and then
345 Ark.
plea deal with
72 S.W.3d
is therefore
hee v.
case
ance on the Henderson
(2002). However, when the facts show
Accordingly, we conclude that
misplaced.
conclusively
the witness is an accom
not abuse its discre-
the circuit court did
a matter
Appellant’s plice,
limit on
the issue
be decided as
imposing
in
a
tion
accomplice
about the histo-
status
of Reed
of law.
Id. When
crоss-examination
facts,
ques
ry
guilty-plea
presents
of his
deal.
instead
issues
prior
jury.
to the
tion is submitted
Powell’s Status
III. Mariah
Ann.
According to Ark.Code
Accomplice
as an
5-2-403,
fol
accomplice
§
an
defined as
Ap
point
appeal,
next
For his
lows:
erred
that the circuit court
pellant claims
(a)
accomplice
A
is an
of another
person
to
Powell an
refusing
in
declare Mariah
offense
person
the commission
an
support
as matter of law. In
accomplice
a
if,
or
purpose
promoting
with the
claim,
that the evidence
of this
he asserts
offense,
facilitating
of an
the commission
that Mariah Powell was
conclusively shows
person:
kidnapping
and mur
an
Specifi
advises,
and Sean Johnson.
(1)Solicits,
encourages,
der of Monte
or
following
cally,
points to the
person
the оther
to commit
coerces
(1) Mariah knew that Reed wanted
offense;
facts:
up”
Monte Johnson and she
“beat
In(2) Aids,
aid,
attempts
agrees
|10aided
by
Monte
taking
Reed
and Sean
person
planning
or com-
aid the other
without
Johnson to the Reck Road house
offense; or
mitting the
(2)
there;
telling them that Reed would be
(3) Having
duty
prevent the
legal
by leading
Mariah further aided
offense,
to make
commission
fails
men into the house where the defen
two
prevent
the commis-
proper
effort
them;
(3)
waiting
attack
dants were
of the offense.
sion
when
oc
present
Mariah was
the crime
(b)
causing a
particular
When
result
opportunity
her
curred and
association
offense, person
element of an
is an
with Reed were relevant facts
determin
person in the com-
accomplice of another
сrime;
(4)
with the
ing her connection
if, acting with
mission of that offense
first
questioned
when Mariah was
with the
respect
particular
to that
result
any
in the
police, she denied
involvement
culpable
kind of
mental state sufficient
Johnsons;
kidnapping and murder of the
offense,
of the
for the commission
(5)
Mariah fled with Reed to avoid
person:
*9
arrest.
(1) Solicits, advises,
encourages,
or
of
Appellant bears the burden
person
engage
other
to
in
coerces the
accomplice
a
is an
proving that
witness
re-
particular
the
causing
the conduct
testimony must be corroborated.
whose
sult;
State, supra.
Bush v.
A defendant must
aid,
(2) Aids,
attempts
to
agrees
or
to
a
either have the trial court declare wit
to
person
engage
aid the other
the
an
as a
of law
accomplice
ness
matter
result;
the
causing
particular
conduct
jury for
or submit the issue to the
determi
(3)
duty
prevent
the
Having
legal
nation. Price
result,
particular
causing
law is
settled
conduct
well
prevent
effort to
accomplice
proper
as an
fails to make
that a witness’s status
causing
particular
earlier,
the conduct
re-
As stated
“kidnapping”
§
defined in
Ann.
Ark.Code
5-11-102
sult.
as
person
follows: “A
commits the offense of
§
Ann.
(Repl.2006).
Ark.Code
5-2-403
if,
consent,
kidnapping without
the person
“accomplice”
The term
cannot be used in a
another person
restrains
so as to interfere
loose or
sense so
popular
as to embrace
substantially with
person’s
the other
liber
who
guilty knowledge,
one
has
or is moral-
ty
(3)
with the purpose of ...
Facilitating
ly delinquent, or who was even an admit-
any felony
commission of
flight
or
after
related,
participant
ted
in a
but distinct
(4)
felony;
Inflicting physical injury
offense. McGehee v.
upon
person_”
the other
Ark.Code
To constitute one
§
Ann.
(Repl.2006).
5-11-102
“Capital
accomplice,
an
he must take
part,
some
murder” is
§
defined in Ark.Code Ann.
5-
act,
perform
duty
person
some
or owe
10-101 as follows: “A
cap-
some
to the
commits
(4)
ital
...
murder if
premeditat-
With the
person
danger
that makes it incumbent
ed and
purpose
deliberated
of causing the
him prevent
of
commission
of
person,
death
another
person
causes
presence, acquiescence,
crime.
Id. Mere
any person
the death of
....” Ark.Code
silence,
act,
duty
or
the absence of a
§Ann.
5-10-101 (Repl.2006). The partic-
is not enough,
reprehensible
however
it
ular result of the offense of kidnapping—
be,
accomplice.
constitute one an
“interfering substantially” with another
Id. The knowledge
being
that a crime is
person’s liberty
an element of that of-
—is
or is about to be committed cannot be said
Similarly,
fense.
an element of the offense
one
accomplice.
constitute
Nor can
capital
of
“causing
murder is
the death” of
the concealment of
or
knowledge,
the mere
person.
another
An accomplice must have
failure to inform the officers of the law
acted with respect
particular
to those
re-
|
when one has
of
learned
the ^commission
sults with the
of culpable
kind
mental state
of a crime.
Id. Presence at the crime
sufficient for the commission of the of-
not
scene does
make one an
as
Arkji.gCode
5-2-403(b).
§
fenses.
Ann.
a matter of law. Id. Relevant factors in
us,
upon
Based
the record before
we can-
determining the
connectiоn
an accom-
say
conclusively
not
the evidence
shows
plice to a crime
presence
are the
of the
culpable
that Mariah Powell had the
men-
crime,
proximity
accused in
oppor-
tal state sufficient to commit the offenses
crime,
tunity to commit the
and an associa-
capital
and kidnapping.
murder
Both
tion with a person involved in a manner
parties agree that Mariah knew Reed was
suggestive
joint participation.
A
Id.
going
up”
to “beat
Monte Johnson. How-
an accomplice
long
defendant is
so
as the
ever, the
conclusively
evidence does not
requisite
defendant renders the
aid or en-
show that Mariah intended to cause the
couragement
principal
to the
regard
with
kidnapping and death of
Monte Johnson
issue,
at
irrespective
offense
of thе
According
Sean Johnson.
to Mariah’s tes-
present
fact that defendant
not
at the
timony,
only
she
thought Reed would “beat
Johnson,
murder scene and did
directly
commit up” Monte
and she
not intend
did
the murder.
anyone.1
to cause the death of
She further
*10
717,
(1925);
refuting
argument
1. In
the State's
that Mari-
169 Ark.
testified
Appel-
accomplice.”
an
then she is not
two act
appearance
the sudden
ened
to give
the Reck
decision
objected
at
to the court’s
men in her bedroom
lant
armed
Latifah
testimony of
and now
presence”
The
instruction
Road house.
the “mere
corrobo-
Tiffany Hammonds
and
ruling.
Johnson
challenges that
panic im-
fear and
Mariah’s state of
rated
ruling on wheth
A trial court’s
in-
following the confrontation
mediately
not be
will
jury
instruction
er
submit
she
stated that
Tiffany
house.
side the
of discretion.
absent an abuse
reversed
fright-
Mariah sound so
never heard
had
294,
107 S.W.3d
v.
353 Ark.
Grillot
plan to
that the
also testified
ened. Reed
(2003).
reviewing
propriety
the
In
the Johnsons arose
murder
kidnap and
instruction,
is not
the issue
jury
giving
Moreover,
left the house.
after Mariah
rather,
is
sufficiency,
the issue
one of
but
the other de-
that
and
the evidence
supports
slightest
whether
Mariah and told
repeatedly called
fendants
the instruction.
police
belies
her not to call the
accomplice
an
as
that she was
contention
that Mariah was
alleges
Appellant
|14a
Lastly,
pres-
Mariah’s
matter of law.
rather,
bystander;
she
just an innocent
her
Reck
house and
ence at the
Road
participant who lured
was an 11fiactive
relevant but not
with Reed are
association
knowing
Reck Road house
Johnsons
determining the issue of
facts in
conclusive
up
to beat
John-
going
that Reed was
The
accomplice.
an
credibili-
her
as
status
Williams had
and
sons and
jury
is an issue for the
and
of witnesses
ty
not reflect
guns. The record does
Phillips v.
not the court.
would be armed.
Mariah knew the men
weight
testified that she
Mariah and Reed both
all reason-
and
given
and Williams
did not know
therefrom
to be drawn
able inferences
earlier,
As noted
be at the house.
would
questions
to determine.
for
were
they
when
frightened
she was shocked
Reynоlds
carrying
men were
and both
appeared
cannot
We therefore
thus reflects evidence
guns. The record
the circuit
erred
submit-
say that
court
that Mariah was
supporting the conclusion
as
ting
of Mariah Powell’s status
the issue
kidnapping
participant in the
not an active
accomplice
jury.
an
and Sean
murder of Monte Johnson
ruling on this
The circuit court’s
Johnson.
Jury
Mere Presence
Instruction—
IV.
of discretion.
point was not an abuse
AMI Criminal 2d Wh
The circuit court
instructed
Status
V.
Johnson’s
Latifah
2d
jury in
with AMI Criminal
accordance
Accomplice
as an
silence
presence, acquiescence,
404: “Mere
to sub
The circuit court declined
being
com
knowledge
a crime
Latifah Johnson’s sta
question
mit the
legal duty
to act
in the absence of
mitted
jury.
On
accomplice
an
tus as
accomplice.
an
make one
is not sufficient to
Latifah’s
contends that
appeal, Appellant
Powell
if
that Mariah
you
Therefore
find
was an issue of
being
was
status as
only present while a crime
felony.
underlying
At issue here
lated to the
purpose as one of its
the common
tion of
culpable
the kind of
Mariah had
consequences.” Those
whether
probable and natural
cases, however,
commission
for the
felony-murder
mental state sufficient
involved
kidnapping and murder.
the offenses of
charges
purpose was re
where the common
*11
fact that should have been submitted to cers who
stopped
had
Appellant several
jury pursuant
to AMI Criminal 2d 403.
times after the homicides. On each occa-
sion, Appellant
driving
a maroon SUV.
This
repeatedly
court has
stat
The circuit court
objection.
overruled his
ed that if there
evidentiary
is some
basis
Appellant now urges this court to reverse
instruction,
for a jury
giving the same is
ruling
circuit court’s
grounds
that
appropriate.
Hickman v.
372 Ark.
evidence of other crimes was not admissi-
438,
(2008).
Appellant claims that the following evi- Ark. R. Evid. 401 Evidence may supports dence giving of a in- be relevant even though it is somewhat struction on Latifah Johnson’s status as an remote in time from the occurrence of the (1) accomplice: Latifah’s fabrication of evi- crime. Teague questioned (2) dence when by the police; 404(b) provides Rule victims, Latifah’s close proximity to the crimes, that “[e]vidence of other wrongs, Reed, Powell, Albert Mariah and Cameron or acts not to prove admissible the char (3) Williams; and her improbable еxplana- of person acter in order to show that he tion why as to she did not enter the Reck conformity acted in may, therewith. It Road house night. that disagree. We however, be admissible for other purposes, cited evidence would not support a finding motive, such as proof opportunity, in Indeed, Latifah was an accomplice. tent, preparation, plan, knowledge, identi no finding such could be made without ty, or absence mistake or accident.” Id. engaging pure speculation. The record any devoid of indicating evidence The record here reflects that Latifah Latifah knew about the reason for bring- Johnson saw maroon SUV ing Monte Johnson and Sean Johnson to parked near the Reck Road house on the the Reck Likewise, Road house. there is night of the murders. night, That same no suggesting any- that she knew around midnight, Tim Mathis saw a ma- thing plan about to commit the offenses roon at SUV a carwash close Hindman of kidnapping and murder. The circuit Park. The victims’ bodies were discovered ruling court’s on this point is affirmed. day the next in Hindman Park. The State contends, agree, and we police
VI. Admissibility Police testimony linking officers’ Appellant to the Testimony Officers’ 404(b) maroon did SUV Rule violate trial, At Appellant objected to the because it was not offered for the purpose introduction of testimony by police of showing character, offi- that he was a bad
82 9-27-352(a)(4) § pro- Annotated sas pattern of Code to a it offered show nor was “[mjedical vides, that rec- part, in relevant rather, to behavior; demon- was offered it records, ords, psychological psychiatric of identity as the driver Appellant’s strate records, thereto related and information crime near both that was seen a vehicle juve- the unless remain confidential shall and was relevant The evidence scenes. guardian waives con- parents legal or nile’s commis- in time from the remote not too describ- writing specifically in fidentiality Accordingly, we can- of the crimes. sion be disclosed between records to ing the its court abused circuit say not that the (c)(1) of in subdivision the listed persons admitting the discretion for the dis- | purpose the and this | ^police officers. the ^section 9-27-352(a)(4) §Ann. Ark.Code closure.” dispute not Appellant does VII. Cross-Examination (Repl.2008). It is there- Johnson juvenile.2 as a Latifah’s status Latifah precludes section 9-27-352 fore clear that trial, re- Appellant Prior to evaluation. of the mental the release review Lati- be allowed to quested that he health evaluation mental fah Johnson’s that could ruling Appellant In by guilty not pled after she was done that statement about her question not Latifah a or defect mental disease reason of court con the circuit bipolar, was that she objected The State juvenile proceeding. at was not competency her that cluded § 9-27- Ann. argued that Ark.Code and words, court deter issue. In other releasing the prohibited (Repl.2008) to testi competent Latifah was mined that The circuit juvenile. of a records medical A about a witness. decision fy as objection. The the State’s court sustained a lies within of witness competency ob- the State’s circuit court also sustained Mod of the trial court. discretion sound sought question jection when lin v. 110 S.W.3d the detec- her statement Latifah about cоmpetency This is so because bipolar. was tive she judge’s the trial in which issue is one important due that, particularly evaluation alleges under appeal, On or she is afforded opportunity he 401, 402, Rules 403 of Arkansas Rules testimony. witness and the observe the Evidence, a wide latitude Appellant has Id. This court will not find abuse of Latifah John- credibility impeach testify allowing a witness to discretion son; questions are within that latitude is one record in the case long as as the that she whether she believed as to could find judge which the trial upon illness and what from mental suffering to tell obligation awareness of moral illness. taking for that she was medications observe, re ability truth and an go questions these Appellant argues facts. member and relate credibility Latifah’s as heart of in re- court erred witness and the circuit credibility witness of a about fusing to allow cross-examination he she is by challenged proving her mental health. delusions, or that her subject to insane impaired have become memory of mind and regard to the disclosure With Lomax evaluation, other causes. disease or Arkan- mental health Latifah’s 352(c)(1) pertinent here. are which disclosure 2. under The circumstances § 9-27- Ark.Code Ann. permitted under
83 534, 452 HANNAH, 248 Ark. JIM Justice, Chief case, Appellant presented In this no evi- dissenting. showing subject dence that Latifah was 12|I respectfully dissent. Gilcrease was ability insane delusions or that her per- denied his right constitutional to confron- Thus, impaired. ceive and remember was tation when the circuit court refused to we conclude that circuit court’s permit examination of witness Albert Reed
|2nCompetencyruling was an abuse of for bias. The openly argued State and discretion.
presented testimony from Reed that he Admissibility VIII. was unbiased because he had “no deal” —Out- Conversation of-Court with the State and only testified to “square trial, balance sheet.” credibly Gilcrease At Latifah ar- Johnson testified about gued hearing a conversation between circuit court Appellant that Reed be- and Cameron Williams sometime after the lieved by belatedly testifying against Latifah, According murder. Appellant Gilcrease, might Reed yet receive the re- bought had revolver .38-caliber from duced he sentence lost when he violated Reed, Albert and Cameron Williams want- plea his agreement. The circuit court buy ed to the gun Appellant but would not denying erred in opportunity Gilcrease the objected sell it to him. Appellant to cross-examine Reed for bias based on testimony, аrguing that it violated Ark. R. subjective his belief that might salvage he 404(b). Evid. plea agreement. his that, appeal contends on negotiated The State a deal with Reed identify because Latifah Johnson did not prior to the of accomplice trial Cameron what, said hearsay who her was Williams. The State informed Reed that if violation Rule 801 of the Arkansas he would testify against Williams and Gil- Rules of Evidence. We decline to address crease, his criminal charges would re- argument this because raises it duced from capital first-degree murder, for the first time appeal. Standridge v. and the State would single recommend a 357 Ark. S.W.3d sixty-year sentence to be served on the regard Appellant’s With Rule two first-degree convictions for murder. 404(b) argument, evidence that Appellant agreed against testified at trial possessed gun similar to that used the Williams, 19, 2008, February but on at a murder independently proof relevant pretrial hearing case, in the Gilcrease on the issue of identity. Bragg Reed announced he testify would not against In hearing, Gilcrease. that same (1997). Moreover, probative its value was the circuit court found the plea agreement not substantially outweighed the dan breached, refused to allow Reed to with- ger prejudice. unfair affirm We guilty draw his pleas, imposed two life circuit court point. on this capital sentences on the charges. murder record this case has been re- However, prosecution Reed called the viewed for other pursuant reversible error later, three days apparently recognizing 4-3(h), Supreme to Arkansas Court Rule actions, folly of his he and said would and none has been found. testify against Gilcrease. Affirmed.
Reed was a critical witness. He was the HANNAH, C.J., dissents. only witness to the kidnapping, trans- criminal, Reed, although a Park,
port |22to and the murders statement Hindman *14 things trial, he could do to set had done all Prior the and Sean. of Monte this assertion stated, right. To reinforce go forward “We cannot prosecutor told the credibility, prosecution the Reed’s the witness Reed.” Reed was without Mr. sentencing were in the trial jury that and information con- the crucial provided deal, Reed, a that he had for done past to the Reed testified victing Gilcrease. by testifying “be- or lose nothing gain facts: following critical over. part the cause his life for most intro- person who was 1. Gilcrease Ar- life sentences in the serving He’s two Monte and killing idea of duced the because Department kansas Correction Johnson; Sean The was also told pled guilty.” jury he Sean Monte and 2. Gilcrease ordered “taken “stepped up” and that Reed had clothes; their to remove responsibility.” and Sean Monte 3. Gilcrease bound jury them tape prosecution and ordered also told the with duct The outside; “no ... none.” Reed there were deals who had jury as a man presented to Sean Monte and 4. Gilcrease ordered crimes, acknowledged accepted his openly car; of a into the trunk just only and who testified punishment, to drive ordered Reed 5. Gilcrease try things right. jury The and make Park; and Sean to Hindman Monte in the “problem” was told that Gilcrease’s as he drove followed Reed 6. Gilcrease to lose trial was that “Albert Reed stands deaths; their Monte and Sean to much gain nothing, doing that he’s as and stated, park, “It’s At the Gilcrease 7. can in his situation.” Reed any as man do done”; got to be if he tо lie any was asked had reason he Gilcrease shot Monte Johnson as 8. Gilcrease, against responded, and Reed flee; attempted to and testify- that he was “No.” Reed testified Gil- ground, was on the 9. Once Monte of Sean and Monte ing “so the families to him and fired mul- crease walked they how would know the truth about body. tiple rounds into Monte’s examination of Reed died.” Further role testimony, Williams’s Through Reed’s to which the State reveals extent holding a being present, was reduced to believability be- emphasized State Reed’s Gilcrease gun on Monte and Sean while hope had no of a deal with cause he them, at the shooting and Sean taped duct State: planner as the
park. Gilcrease was left Q: you I clear that have no want be primary kidnapping actor in the you? judge, deal with this do only direct prоvided murders. sir, mean, A: I no ma’am. No critical facts. Reed’s evidence of these Q: you He to two life sen- sentenced true, Gilcrease may well but tences. know of the right jury had judging Reed’s testi- possible bias before A. Two life sentences.
mony.
that he’s
Q: Right. And he’s never said
as a
presented
jury
Reed was
going
change
that?
ever
nothing
gain by
to lose or
man who had
that.
Haven’t said
I24A:
only
who
be-
testifying, a man
testified
coming
Q: You knew that
in?
wrongs.
he
to atone for his
cause
wanted
coming
I
in.
A:
knew that
prosecution
opening
told
l^the
mean,
you
you
When
talked —I
have
The Sixth Amendment
to the United
<o
attorney,
right?
2, §
States Constitution and Art.
10 of
the Arkansas
guarantee
Constitution
í> Yes.
right
of an accused in a criminal
your attorney
Did
it
make
clear to
<©
prosecution to be confronted with the
you that—
against
witnesses
right
him. The
t> Made it clear to me.
confrontаtion provides
types
two
of pro-
*15
judge
—the
never
going
said he was
<©
tection for a criminal defendant:
the
change
it?
right physically to face those
testify
who
t> Made it clear to me.
against him and
opportunity
to con-
duct effective cross-examination.
Q:
you
You knew that when
in
came
State,
Ridling
213,
v.
221,
348 Ark.
72
today?
466,
(2002)
S.W.3d
470
(quoting Bowden v.
A:
I
that.
knowed
State,
303, 308,
301 Ark.
842,
783 S.W.2d
mean,
Q:
great
I
it be
if he did—
(1990)).
844
“Cross-examination is the
A: Yeah.
principal
by
means
which
believability
Q: You know there is
promise.
no
of a witness and the truth of
testimony
his
promise.
A: No
No deal.
Alaska,
are tested.” Davis v.
415 U.S.
Q:
you’ve
Right now
been sentenced
308, 316,
1105,
94 S.Ct.
tive cross-examination is a “constitutional
magnitude
error
the first
and no amount
afiQ: Do you
any
have
reason to lie
1
of showing of want of prejudice would cure
against
guy
this
here?
Davis,
it.”
318,
this case would of the expectations on Reed’s examination DANIELS, Appellant, Antonio plea agreement, no of his resurrection might be. Gil- unlikely that matter how right had a to full cross-examination crease Arkansas, Appellee. STATE Henderson, to show bias. order No. 09-370. CR at 18. “This is 652 S.W.2d
Ark. at
of an
true in the case
especially
of Arkansas.
Supreme Court
the direct evidentia-
his
since
May
2009.
ry link between the defendant
Id.,
noted,
ON
at 18. As
FOR RULE
CLERK
MOTION
crime.”
652 S.W.2d
deal and
ny elicited
that he would like a
no
sentence. He
his
mony that
about
assume
thing he needed
bility and increase the
after the fact.
success.
this
way revealed
plea | ^agreement might be honored
his
case,
that Reed believed
of the сritical
had no
hope,
from
there was no
agreed
to do
It
to the
provided
hope
reduction, but that in
assuring
with
quite
was that he
facts. The testimo-
of a reduction
bolster
likelihood of his
deal, was some-
keeping quiet
reasonable to
his
in his testi-
only
prosecutor
hope
his
had no
direct
credi-
the December
manded for failure
Appellate Procedure —Criminal We
motion for rule
Pursuant
not state the
now
granting
curiam dated
attorney Dale
granted as
consent
[11]
PER CURIAM.
Antonio
presented
to the extension and because
required by Arkansas Rule
*16
Daniels,
April
extension
11,
with a
West,
on clerk
April
length of the extension
to state that all
30,
243,
by and
30,
6,May
has resubmitted
2009. See Daniels
circuit court order
following
of time was re-
2009