Williams v. State

• Citation: 944 S.W.2d 822,328 Ark. 487
• Decision Date: 12 May 1997
• Docket Number: No. CR,CR
• Parties: Houston WILLIAMS and Kathlene Williams, Appellants v. STATE of Arkansas, Appellee. 96-848.
• Court: Supreme Court of Arkansas

Page 822

944 S.W.2d 822

328 Ark. 487

Houston WILLIAMS and Kathlene Williams, Appellants v. STATE of Arkansas, Appellee.

No. CR 96-848.

Supreme Court of Arkansas.

May 12, 1997.

Kent McLemore, Fayetteville, for Houston Williams.

Jay T. Finch, Bentonville, for Kathlene Williams.

Winston Bryant, Attorney General, Clint Miller, Acting Deputy Attorney General, Little Rock, for appellee.

NEWBERN, Justice.

Houston and Kathlene Williams were convicted of conspiracy, Ark.Code Ann. § 5-3-401 (Repl.1993), to deliver methamphetamine. Ark.Code Ann. § 5-64-401(a) (Supp.1995). The primary evidence against them came from testimony given by Henry and Terry Glosemeyer. There was additional testimony from police officers and a chemist, but the only evidence given by those witnesses that implicated the Williamses came from the Glosemeyers or from Fred Colvin. Mr. Colvin, who did not testify, had given a statement to a police officer implicating the Williamsas as drug dealers. Mr. Colvin was pronounced by the Trial Court to be an accomplice to the conspiracy as a matter of law. The Trial Court left the question whether the Glosemeyers were accomplices to the jury.

It was the contention of the Williamses at the trial that the Glosemeyers should have been declared accomplices as a matter of law by the Trial Court, and therefore, as there was no corroborating evidence, their motions for directed verdict should have been granted. That has remained their primary contention on appeal.

The Arkansas Court of Appeals affirmed the convictions by a tie vote. Williams v. State, 54 Ark.App. 271, 927 S.W.2d 812 (1996), and we granted the Williamses' petition for review. We agree, that corroborating evidence was required, there was none, and thus it was error to deny the directed verdict motions. We reverse and dismiss the convictions.

When we grant a petition to review a case decided by the Court of Appeals, we treat it as if it were before us in the first appellate instance. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). In reviewing Mr. Williams's abstract, we noted that his counsel mistakenly presented the judgment and commitment order from a previous conviction of Mr. Williams for possession with intent to deliver methamphetamine and marijuana and not the one relevant to this case. Although the State has not raised an issue as to the inadequacy of Mr. Williams's abstract, we must address it.

In Winters v. Elders, 324 Ark. 246, 247, 920 S.W.2d 833, 834 (1996), we said we have "long held that the judgment appealed from is a bare essential of an abstract" citing numerous cases. In Jolly v. Hartje, 294 Ark. 16, 18, 740 S.W.2d 143, 144 (1987), we wrote, "Ordinarily the basic pleadings and judgment or decree appealed from are essential constituents of the abstract, as we have frequently noted." The question we must answer as a preliminary matter is whether the failure to include the appropriate judgment and commitment order in the abstract makes it "flagrantly deficient." Ark. R. Sup.Ct. 4-2(b)(2).

We choose not to declare Mr. Williams's abstract "flagrantly deficient." Except for the omission of the judgment and commitment order, the abstract is complete and exemplary. We know from his uncontested statement of the case that Mr. Williams was convicted of conspiracy to deliver methamphetamine and that he was sentenced to thirty years' imprisonment for that offense. We are aware that in other cases, such as the recent decision in Jewell v. Miller County Election Comm'n., 327 Ark. 153, 936 S.W.2d 754 (1997), we have declined to look to other parts of a brief or abstract to find information that should have been included elsewhere. That, however, was a case in which we were given a nine-page abstract to depict a 1500-page record and six volumes of exhibits. Even in the case of Winters v. Elders, supra, where we declared an abstract of the judgment "essential," we had an additional reason for affirmance based on incompleteness of the record. While an abstract of the judgment from which the appeal comes is "ordinarily" required, its absence does not necessarily constitute a flagrant deficiency requiring affirmance, and it does not in this case.

The Williamses were convicted of possession of methamphetamine and marijuana with intent to deliver on January 7, 1994. Mr. Williams was sentenced to thirty years in prison and a $25,000 fine. Ms. Williams was sentenced to fifteen years in prison and a $15,000 fine. We affirmed that conviction. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). They were then tried and convicted on February 2, 1994, on the conspiracy charge. He received a sentence of thirty years' imprisonment, and she was sentenced to twelve years' imprisonment.

Prior to trial, Mr. Williams, in a motion joined by Ms. Williams, moved the Trial Court to declare Mr. Glosemeyer an accomplice as a matter of law in accordance with Ark.Code Ann. § 16-89-111(e)(1) (1987). Section 16-89-111(e)(1) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The motion was denied.

Mr. Glosemeyer testified that charges were pending against him for possession of two ounces of methamphetamine with intent to deliver. He said he and Ms. Glosemeyer took jobs with Lloyd McCord Trucking in Springdale in 1991. They met the Williamses, who were then working for the same trucking company, around Thanksgiving of 1991. Mr. Glosemeyer stated that the Williamses lost their jobs before Christmas of that year. In Mr. Glosemeyer's words, this "was the first time [he] had an occasion to talk to [the Williamses] about procuring drugs."

Mr. Glosemeyer testified that he and Mr. Williams reached an agreement whereby Mr. Williams would take a gun owned by Mr. Glosemeyer to California and attempt to sell it for money, or trade it for drugs which he would then sell for money. Mr. Glosemeyer stated that he and Mr. Williams agreed to split whatever Mr. Williams obtained for the gun. Mr. Williams made the trip to California and later gave Mr. Glosemeyer one quarter ounce of methamphetamine in return for his gun.

Through the spring of 1992, the Glosemeyers would "weekend" with the Williamses at their home in West Fork. During that time, according to Mr. Glosemeyer, the Williamses often traveled to California for the purpose of obtaining drugs that they would later sell in Arkansas. Mr. Glosemeyer said that the Williamses were making their living by selling drugs and collecting unemployment benefits. Mr. Glosemeyer testified that he and Ms. Glosemeyer and the Williamses would use some of the drugs the Williamses had obtained in California, but Mr. Glosemeyer stated that, in the beginning, he and his wife were not selling any drugs. He admitted, however, that he and Ms. Glosemeyer had conversations with the Williamses about "making a living from selling drugs."

The Glosemeyers quit their jobs with the trucking company on April 17, 1992, and began living with the Williamses in their West Fork residence. Mr. Glosemeyer testified that neither he nor Ms. Glosemeyer was employed during this time or drawing unemployment benefits but that they were living on the income they already had earned. The Williamses were not charging them for rent or food. The Glosemeyers did not contribute money for the upkeep of the house, but they assisted with chores. The Williamses also provided the Glosemeyers "with as much drugs as [they] could do."

The Glosemeyers frequently talked with the Williamses about using, buying, and selling drugs. They would talk about how much methamphetamine they had in the house and how long the supply would last before Mr. Williams would have to make another trip to California to purchase more drugs. Mr. Williams made three or four trips to California for the purpose of obtaining methamphetamine during Mr. Glosemeyer's stay there from April to September 1992. Mr. Glosemeyer estimated that the Williamses would return from California with quarter pounds of methamphetamine.

Eventually, Mr. Glosemeyer did more than merely "talk" about Mr. Williams's travels to California. At some point between April and July of 1992, he permitted the Williamses to drive his truck to California for the purpose of obtaining methamphetamine. The Williamses asked the Glosemeyers to accompany them, but the Glosemeyers declined because Mr. Glosemeyer did not "think it was a good idea to take women along on a drug deal and make a party out of it." Mr. Glosemeyer testified that he permitted the use of his truck even though he was aware that the truck could have been seized if the Williamses had been caught. There is no question that Mr. Glosemeyer knew that his truck would be used by the Williamses for the purpose of purchasing drugs and bringing them back to Northwest Arkansas for distribution.

Mr. Glosemeyer said that he never saw the Williamses sell drugs in their home during his stay there from April to September of 1992, but he said that he saw people come to the house and talk with the Williamses about obtaining drugs from them. As abstracted, the testimony was, "People came to the house and we all did drugs. There was constant conversation about selling drugs." These conversations included the Williamses.

Mr. Glosemeyer testified that Ms. Glosemeyer moved out of the Williams residence in June or July of 1992 and that he moved out in September 1992. After Mr. Glosemeyer left the Williams residence, he moved to Springdale and returned to a position at McCord Trucking.

Mr. Glosemeyer testified that he continued to purchase drugs from the Williamses for his personal use. In November 1992, he began to purchase drugs from the Williamses to resell to other people. Mr. Glosemeyer testified that he purchased...