Rockett v. State

• Decision Date: 23 January 1995
• Docket Number: No. CR,CR
• Citation: 891 S.W.2d 366,319 Ark. 335
• Parties: Robert L. ROCKETT, III and Terrick T. Nooner, Appellants, v. STATE of Arkansas, Appellee. 94-578.
• Court: Arkansas Supreme Court

Page 366

891 S.W.2d 366

319 Ark. 335

Robert L. ROCKETT, III and Terrick T. Nooner, Appellants, v. STATE of Arkansas, Appellee.

No. CR 94-578.

Supreme Court of Arkansas.

Jan. 23, 1995.

Joe Kelly Hardin, Benton, for appellants.

Vada Berger, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

This case involves the joint appeals of appellants Robert L. Rockett, III, and Terrick T. Nooner, both of whom were convicted of aggravated robbery and sentenced to life imprisonment. Rockett and Nooner raise multiple points in their respective appeals, but finding no merit in any point raised, we affirm.

On March 23, 1993, at approximately 10:15 p.m., a woman, later identified as Antonia Kennedy, ¹ approached the door of the Pizza Hut in the City of Bryant. She asked to use the restroom facilities. When informed that the business was closed, she returned to her car and left. Shortly thereafter, a Pizza Hut employee, Jason Beard, went outside to throw away the trash. When he reentered the store, two men wearing blue masks followed him inside. One of the men was wearing socks on his hands; the other gloves. The two masked men directed Beard and five teenagers in the restaurant to the back of the store. One of the masked men carried a pistol with chrome or nickel plate and threatened to shoot the hostages if they did not cooperate. The robber without the handgun began hitting and kicking several of the teenagers. At one point, he stated: "Let me shoot one of them." The men took money and jewelry from the teenagers and then placed them in the walk-in freezer. After that, they fled the premises.

Two days later, on March 25, 1993, Officer Greg Baugh of the Jonesboro Police Department was patrolling the Motel 6 parking lot in Jonesboro when he discovered a car which, upon checking, proved to be stolen. Officer Baugh parked his police car in the motel parking lot, got out of the vehicle, and stepped underneath the motel balcony so that he would be out of view. He then noticed the reflections of three or four persons walking along the balcony on the second floor of the motel. When they saw his patrol car, they stopped abruptly and began to whisper. He stepped out from under the balcony and watched all but one of the persons walk into a motel room. Rockett was later identified as the person who remained standing outside the room.

Officer Baugh then requested Rockett to come down and talk. Rockett wanted to go inside the motel room and put on his shoes. Officer Baugh refused to let him do this and again requested him to step down and talk with him. Rockett became very nervous and fled. At that point Officer Baugh drew his pistol. The officer ran up the stairs with his pistol drawn and arrested the three people in the motel room. Nooner and Antonia Kennedy were two of the three people in the motel room. When Officer Baugh asked them their names, Nooner gave him a false name. Backup police officers arrived, and a search of the room was conducted. A pair of gloves and a blue ski mask were found in the room, and a pistol with nickel plate was located in the bathroom. A search of the stolen car revealed another blue ski mask. Rockett eventually returned to the motel and was arrested. Rockett, Nooner, and Antonia Kennedy were later charged with aggravated robbery, aggravated assault, and kidnapping associated with the Pizza Hut robbery in Bryant.

Prior to trial, Rockett and Nooner each moved for a severance of their trials. The trial court denied the motions. Before voir dire commenced, both men again moved for a severance of their trials when the trial court limited them to a total of eight peremptory strikes. The trial court denied the motions. Twice, during the course of the trial, the severance motion was renewed by Rockett in regard to references that Nooner currently was incarcerated on "death row." Each time the motion was denied.

At trial, the six persons inside the Pizza Hut testified to the events that transpired that night. They identified Antonia Kennedy as the woman who came to the Pizza Hut, and one of the victims, Sandy Dotson, testified that she had a ring stolen from her that night. A ring, identified by Dotson as hers, was later introduced into evidence through Jazmier Kennedy, who was the girlfriend of Rockett and the sister of Antonia Kennedy. She testified that Rockett gave her the ring.

Antonia Kennedy turned state's evidence and testified that she drove Rockett and Nooner to the Pizza Hut in Bryant. She stated that it was she who tried to use the restroom and was refused. She then returned to the car and pulled into a church parking lot nearby. At that time, Rockett and Nooner got out of the car. When they returned, they were carrying masks, and Rockett was carrying a handgun. They told her to "drive like she never drove before." She drove them back to North Little Rock where they handed her a $100 bill. She stated that she left after that. At the close of the State's case, the State dropped the aggravated assault and kidnapping charges against the appellants, leaving only the aggravated robbery charges intact.

Rockett presented no witnesses on his behalf, but Nooner took the stand, against advice of counsel, and claimed that he was working the night of the robbery and that he did not commit the crime. He advised the jury not to believe Antonia Kennedy and added that he was on death row based on her false testimony given during the trial of another crime. The jury returned guilty verdicts against both men, and they were sentenced to life in prison.

I. MOTIONS FOR DIRECTED VERDICT

Each appellant contests the trial court's denial of his motion for a directed verdict which we consider prior to the assertion of other trial error. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). Directed verdict motions must be specific and must apprise the trial court of the particular point raised. See Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). The only specific point raised in the directed verdict motion made by either man related to the State's failure to produce evidence to corroborate the testimony of Antonia Kennedy, who they contend was a known accomplice. Accordingly, that is the only issue which we will consider.

A procedural deficiency precludes our review of this point, however. Neither Rockett nor Nooner requested that the trial court declare Antonia Kennedy to be an accomplice as a matter of law or that the issue of her accomplice status be submitted to the jury as a factual dispute. See Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). This court has made it clear that a person must first be found to be an accomplice under Ark.Code Ann. § 5-2-403 (Repl.1993) for the requirement of corroborative evidence to come into play under Ark.Code Ann. § 16-89-111(e)(1) (1987). Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). We have further made it clear that it is the burden of the defendant to prove that a witness is an accomplice whose testimony must be corroborated. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). Because Rockett and Nooner did not seek a determination that Antonia Kennedy was an accomplice either from the trial court or the jury, the issue of corroborative evidence cannot be raised for the first time on appeal, and we refuse to address it.

II. SUPPRESSION OF EVIDENCE

For their next point Nooner and Rockett contend that the trial court erred in failing to suppress the admission of the ski masks, gloves, and pistol seized in the Motel 6 room and stolen car in Jonesboro without an arrest warrant or search warrant. This issue has three components.

First, with regard to Rockett we have previously decided this issue in a case concerning the same search but in connection with an entirely separate crime. See Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). In that case, we acknowledged that one registered at a motel as a guest is protected against unreasonable searches and seizures. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). We held, however, that Rockett, in whose name the motel room was registered, abandoned his interest in the room by fleeing from Officer Baugh and thus lacked standing to raise the issue of any expectation of privacy he had regarding it. That holding decides the issue which is raised by Rockett a second time in the case before us.

With respect to Nooner, who was found inside the motel room after Rockett fled, he never proved an expectation of privacy in the room. See Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). It is clear that a proponent of a motion to suppress has the burden of establishing that Fourth Amendment rights have been violated. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Those rights are personal in nature. Id; State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). Here, the room was registered in Rockett's name--not Nooner's. And Nooner failed to present any evidence that he spent anything other than a brief period of time in the room. There was only Antonia Kennedy's general testimony that the four of them had gone to the Motel 6 the day before. The facts in Johnson v. State, supra, are comparable. In that case the motel rooms involved also were not registered in the appellant's name, and there was no proof that he did anything other than go into the rooms for brief periods of time. We concluded that Fourth Amendment rights did not stretch that far, and that there was no establishment of a legitimate expectation of privacy. In short, in the present case more was needed to establish a privacy interest in the room. Nooner failed to present sufficient proof to support his...