Kuntrell Jackson appeals his judgments of conviction for capital felony murder and aggravated robbery and his sentence of life without parole. He contends that the trial court erred in: (1) denying his motion to suppress; (2) denying his motion for a directed verdict; and (3) instructing the jury on the affirmative defense to first-degree murder. Because this is a criminal appeal in which the death penalty or fife imprisonment has been imposed, jurisdiction is proper pursuant to - Ark. Sup. Ct. R. l-2(a)(2). We find no merit to Jackson’s allegations of error and affirm the convictions.
Facts
On the evening of November 18, 1999, the appellant, Kuntrell Jackson was walking with Derrick Shields and Travis Booker through the Chickasaw Courts housing project in Blytheville and began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, the appellant became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store Shields and Booker went in, while the appellant elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she didn’t have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face. The three boys then fled to Jackson’s house without taking any money. Later, Jackson jokingly told his classmates he was responsible for the Movie Magic incident. At trial, he denied any culpability, and admitted he had lied in his earlier statement to the police that the three of them went their separate ways after the shooting.
On March 7, 2000, Detective Ross Thompson of the Blytheville Police Department spoke with Jackson, who was in custody on an unrelated charge. Thompson advised the appellant of his Miranda rights and questioned him about the Movie Magic incident, because of some statements that Detective Thompson had previously obtained. In his statement, which was made without any coercion or promises to him, the appellant denied the allegations that he had anything to do with the shooting at Movie Magic. On March 28, 2001, after securing an arrest warrant in connection with the murder at the video store, both Detective Thompson and Detective Gary Buys of the Blytheville Police Department questioned Jackson again at the juvenile detention facility in Colt, Arkansas, where the appellant was being held on yet another unrelated charge. Once again, Thompson advised Jackson of his rights, offering no promises to him, and the appellant gave another uncoerced statement. After verbally explaining what happened, Jackson gave a written statement which said, “Derrick shot the lady. That’s all I’m saying.” The appellant refused to say anything else until he could speak with his mother. He was then taken back to Blytheville, where he later asked'to speak with Detective Buys. After again being given the same Miranda rights as an adult, Jackson gave an uncoerced and tape-recorded statement about the robbery and shooting at the video store. Again, the detectives neither coerced nor made promises to him.
In a pre-trial suppression hearing, Jackson requested that the trial court suppress his prior statements, but his motion in limine was denied. At the conclusion of the State’s case- in-chief, and at the conclusion of the trial, he moved for a directed verdict. Both motions were denied. Jackson was convicted of both capital murder and aggravated robbery. He was sentenced to life in prison on the capital murder conviction, but he was not sentenced on the robbery conviction. Jackson brings three points on appeal: (1) whether the trial court erred in denying his motion to suppress; (2) whether the trial court erred in denying his motions for a directed verdict; and, (3) whether the trial court erred in instructing the jury concerning an affirmative defense to first-degree murder.
Directed Verdict
Jackson asserts that the trial court erred in denying his motions for a directed verdict because he did not participate in the commission of either the robbery or the shooting to a degree which would support a finding of guilt. We disagree. Appellant actually raises this issue as his second point on appeal, because of double-jeopardy concerns, however, we will address his sufficiency-of-the-evidence argument first. See Grillot v. State,
In order to convict the appellant of capital murder, the State had to prove that Jackson attempted to commit or committed an aggravated robbery and, in the course of that offense, he, or an accomplice, caused Ms. Troup’s death under circumstance manifesting an extreme indifference to the value of human life. See, Ark. Code. Ann. § 5-10-101 (a)(l)(Repl. 1997). However, section (b) of the capital murder statute provides:
(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.
Ark. Code. Ann. § 5-10-101(b) (Repl. 1997). Jackson avers he carried his burden of proof on the affirmative defense capital murder in that he was not the only participant in the crime, and he did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. It is undisputed that Jackson was not the only participant, and there is no question that Shields was the one who shot Ms. Troup. However, there is some contention as to whether Jackson aided, solicited, or encouraged the robbery or murder.
Specifically, there is a question of fact as to whether Jackson said “We ain’t playin’ ” or “I thought you all was playin’ ” upon entering the store. An earlier statement given by Booker reported that the appellant said, “We ain’t playin’.” However, at trial, Booker recanted, and both he and the appellant testified that Jackson said, “I thought you all was playin’.” This court has held that it is within the province of the jury to accept or reject testimony as it sees fit. Riggins v. State,
Motion to Suppress
Next, Jackson contends, because he was a juvenile at the time he was questioned, the trial court erred in denying his motion to suppress statements given to the police. He contends the officers did not comply with the protections afforded him by Ark. Code Ann. § 9-27-317, in that they failed to advise him of his Miranda rights in his own language, and they failed to inform him of his right to have a parent present during questioning. In cases involving a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. Grillot, supra. Because Ark. Code Ann. § 9-27-317(i)(2)(A) and (B) had not yet been enacted at the time he was questioned on March 7, 2000, or March 28, 2001, Jackson’s reliance upon § 9-27-317 is misplaced. Although the statute in question was enacted in April 2001, we have a duty to construe statutes as having only a prospective operation unless the purpose and intention of the legislature to give them a retroactive effect are expressly declared or necessarily implied by the language used. Littles v. Flemings,
In addition, this court has recently held that § 9-27-317(i) does not apply where a juvenile has been charged as an adult. Shields v. State, No. CR 03-866, slip op. (May 6, 2004); Jenkins v. State,
Jury Instruction
For his final point on appeal, Jackson asserts that, by instructing the jury on the affirmative defense to first-degree murder, the trial court confused the issue and presented an insurmountable and unnecessary burden. The affirmative defense to murder in the first degree is as follows:
(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant:
(1) Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid its commission; and
(2) Was not armed with a deadly weapon; and
(3) Reasonably believed that no other participant was armed with a deadly weapon; and
(4) Reasonably believed that no other participant intended to engage in conduct which could result in death or serious physical injury.
Ark. Code Ann. § 5-10-102(b) (Repl. 1997). We have held that a party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Kemp v. State,
The State contends that, even if the trial court erred in giving the instruction, any error was harmless. We agree. The trial court instructed the jury on capital murder and then instructed the jury on murder in the first degree and its affirmative defense. The court instructed the jury that, unless it had a reasonable doubt of the appellant’s guilt on the charge of capital murder, it was not to consider the charge of murder in the first degree; and it was not to consider the affirmative defense to murder in the first degree unless and until it determined that he had committed that offense. Because the jury found Jackson guilty of capital murder, it could not consider the charge of murder in the first degree nor its affirmative defense. Accordingly, we hold that any error the trial court might have committed in instructing the jury on the affirmative defense murder in the first degree was harmless, and we also affirm the trial court on this point.
Rule 4-3 (h) Review
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the State. There are no other rulings adverse to the appellant which constituted prejudicial error.
Affirmed.