Phillips v. State, 00-992

Citation40 S.W.3d 778
Decision Date19 April 2001
Docket Number00-992
PartiesTommy PHILLIPS v. STATE of Arkansas CR 00-992 Supreme Court of Arkansas
CourtSupreme Court of Arkansas

Appeal from Pulaski Circuit Court; Marion Andrew Humphrey, Judge; affirmed.

1. Evidence -- sufficiency of evidence -- review of challenge to. -- When the appellate court reviews a challenge to the sufficiency of the evidence, it will affirm the conviction if there is substantial evidence to support it; evidence is substantial if, when viewed in the light most favorable to the State, it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture.

2. Witnesses -- credibility -- issue for jury. -- The credibility of witnesses is an issue for the jury and not the court; the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence; the appellate court will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to resort to speculation and conjecture in reaching its verdict.

3. Evidence -- substantial evidence supported appellant's capital-murder conviction -- trial court's refusal to direct acquittal verdict affirmed. -- Substantial evidence supported the conviction of appellant for capital murder where the State presented the testimony of an eyewitness who positively identified appellant as the shooter and two confessions by appellant; it was within the province of the jury to resolve any conflicts or inconsistencies in this evidence; in light of the eyewitness identification and the confessions by appellant, the supreme court could not say that the jury was forced to resort to speculation and conjecture to find appellant guilty of capital murder and, therefore, affirmed the trial court's refusal to direct a verdict of acquittal.

4. Criminal law -- reliability of eyewitness identification -- normally question for jury. -- Normally the reliability of eyewitness identification of a defendant is a question for the jury; if it is not argued that the procedures leading to the identification were constitutionally infirm, it is up to the jury to determine whether the eyewitness identification is reliable.

5. Criminal law -- reliability of eyewitness identification -- trial court did not err by refusing to suppress identifications made by eyewitness. --Where appellant asserted no constitutional infirmity in the eyewitness identification procedures but argued only the reliability of the identification, the reliability of the eyewitness's identification of appellant was, in the absence of an allegation of suggestive procedures tainting the identification process, a question for the jury; consequently, the supreme court held that the trial court did not err by refusing to suppress the identifications made by the eyewitness.

6. Evidence -- Ark. R. Evid. 403 -- balancing of probative value against danger of unfair prejudice is matter left to trial court's discretion. -- The balancing mandated by Ark. R. Evid. 403 of probative value against the danger of unfair prejudice is a matter left to a trial court's sound discretion; the supreme court will not reverse the court's ruling absent a showing of manifest abuse.

7. Evidence -- slight errors in introduction of evidence -- not reversible error where evidence of guilt is overwhelming. -- When evidence of guilt is overwhelming, slight errors in the introduction of evidence do not constitute reversible error.

8. Evidence -- Ark. R. Evid. 403 -- admission of guilt is of highly probative value. -- An admission of guilt by the accused is relevant evidence of highly probative value.

9. Evidence -- Ark. R. Evid. 403 -- trial court did not abuse discretion in refusing to exclude letter written by appellant. -- Although appellant's letter to a friend, in which he stated that "I know I did murder that man," was open to more than one interpretation, the fact that it could have had a negative impact on appellant was insufficient to exclude it under Ark. R. Evid. 403; for the letter to have been excluded under Rule 403's balancing test, the danger of unfair prejudice must have substantially outweighed the probative value of the letter; counsel was free to argue an alternative interpretation of the letter to the jury in order to mitigate any prejudice; however, Rule 403 does not require the court to suppress evidence of guilt simply because it is open to interpretation; whether the letter was in fact a confession was an issue for the jury to decide; the supreme court concluded that the trial court did not abuse its discretion when it declined to exclude the letter under Rule 403. [wbj]

William A. McLean, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., for appellee.

Annabelle Clinton Imber, Justice.

Appellant Tommy Phillips was convicted of capital murder and two counts of aggravated robbery in the Pulaski County Circuit Court. He was sentenced to life imprisonment without parole for capital murder, life imprisonment for one count of aggravated robbery, and a term of forty years for the second count of aggravated robbery. This is Mr. Phillips's second appeal. In Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999), he appealed the denial of his motion to dismiss on double jeopardy grounds. We affirmed the trial court, holding that Mr. Phillips impliedly consented to the granting of a mistrial in his first trial when he failed to object to the mistrial that was clearly ordered for his benefit. Id. Mr. Phillips now appeals his conviction on retrial. For reversal, Mr. Phillips argues that there was insufficient evidence to connect him to the crimes, that the trial court should have suppressed the identifications made by the surviving victim because they were unreliable, and that the trial court erred when it allowed the introduction into evidence of a letter written by Mr. Phillips because the prejudicial effect of the letter outweighed its probative value. We find no error and affirm.

I. Sufficiency of the Evidence

For his first point on appeal, Mr. Phillips argues that the evidence connecting him to the crime was insufficient to support a conviction. Specifically, he argues that Carr Stalnaker, the surviving witness, was unable to strongly and reliably identify him as the perpetrator, that the testimony of Cory Caldwell that Mr. Phillips confessed his involvement in the crime was suspect and unreliable, and that the written confession made by Mr. Phillips in a letter to Mr. Caldwell was subject to more than one interpretation and was, therefore, unreliable. The State argues that Mr. Phillips's challenge to the sufficiency of the evidence is no more than a challenge to the weight and credibility of the evidence and should be rejected. We agree.

As a threshold matter, we note that Mr. Phillips has preserved his challenge to the sufficiency of the evidence only as to the charge of capital murder. At the close of the State's case-in-chief, Mr. Phillips moved for a directed verdict "on the charge of capital murder" because the evidence was insufficient to connect him to the crime. At the close of all evidence, Mr. Phillips renewed his motion "for the same factual and legal arguments made at that time." Therefore, only the sufficiency of the evidence to support the conviction for capital murder is properly before us.(FN1) See Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000).

When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Evidence is substantial if, when viewed in the light most favorable to the State, it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. The credibility of witnesses is an issue for the jury and not the court. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to resort to speculation and conjecture in reaching its verdict. Fudge v. State, supra. The evidence to convict Mr. Phillips was substantial. On the night of February 17, 1997, two men robbed the Freight Damaged Foods Store in Little Rock. The store closed at 6:00 p.m., at which time Carr Stalnaker, an employee of Frito-Lay, was stocking products on the shelves at the Freight Damaged Foods Store. He and the store's assistant manager, Van Dean Clouse, were the only people remaining in the store when, at approximately 6:25, two men wearing bandanas and dark knit caps appeared and robbed the store. Mr. Stalnaker subsequently identified the two robbers as Appellant Tommy Phillips and Cochise Miles. Phillips and Miles held Stalnaker and Clouse at gunpoint during the robbery, then forced them into a cooler at the back of the store. While walking towards the cooler, Mr. Stalnaker heard Mr. Phillips saying repeatedly that "if there's not any more money than this, somebody's gonna die." In an effort to appease Mr. Phillips, Mr. Stalnaker gave him all of the money he had from his delivery route.

After the four men entered the cooler near the back door, both Mr. Stalnaker and Mr. Clouse informed the robbers that they had families and asked the men to just leave with the money. Mr. Phillips told them to shut up, and then he repeatedly pointed his gun at Mr. Clouse's head and lowered it. Mr. Stalnaker recognized that Mr. Phillips was "psyching himself up" to kill Mr. Clouse. Mr. Phillips eventually shot Mr. Clouse in the head. As soon as Mr. Stalnaker realized what had happened, he ran out of the cooler and through an open back door, escaping down an alley until he located a pay...

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    ... ... Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions ... ...
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