Bangs v. State

• Decision Date: 16 September 1999
• Docket Number: 98-1276
• Citation: 998 S.W.2d 738
• Parties: Brian Keith BANGS v. STATE of Arkansas CR 98-1276 ___ S.W.2d ___ Opinion delivered
• Court: Arkansas Supreme Court

Brian Keith BANGS v STATE of Arkansas

CR 98-1276 ___ S.W.2d ___

Opinion delivered September 16, 1999

Supreme Court of Arkansas

Appeal from Stone Circuit Court; John Dan Kemp, Judge; affirmed.

1. Motions -- directed verdict -- treated as challenge to sufficiency of evidence. -- On appeal, the supreme court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence; when a challenge to the sufficiency of the evidence is reviewed, the supreme court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State.

2. Evidence -- substantial evidence defined -- circumstantial evidence may be sufficient to support conviction. -- Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture; the evidence may be either direct or circumstantial; circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion.

3. Witnesses -- credibility -- trier of fact free to believe all or part of witness's testimony. -- The trier of fact is free to believe all or part of a witness's testimony; moreover, the credibility of witnesses is an issue for the jury and not for the supreme court.

4. Criminal law -- premeditation & deliberation discussed. -- Premeditation is not required to exist for a particular length of time; it may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime; premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused's conduct.

5. Evidence -- substantial evidence of premeditation & deliberation -- evidence sufficient to support capital-murder convictions. -- Where medical evidence revealed that the victims' wounds were located in positions inconsistent with appellant's testimony and consistent with the victims lying in their bed, the nature and distribution of the wounds coupled with appellant's testimony that he had waited in the victims' home, hidden in the shower and armed himself with a gun, provided substantial evidence of premeditation and deliberation; viewed in the light most favorable to the State, there was sufficient evidence to support appellant's capital-murder convictions.

6. Criminal law -- serious physical injury -- issue for jury. -- Serious physical injury, as required for a finding of first-degree battery, is defined in Ark. Code Ann. § 5-1-102(19) as physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ; whether a victim has sustained serious physical injury is an issue for the jury.

7. Criminal law -- first-degree-battery conviction -- affirmed. -- In light of the medical testimony and the victim's own account, the jury could reasonably conclude that she sustained serious physical injury; there was sufficient evidence to sustain appellant's first-degree-battery conviction.

8. Criminal procedure -- voluntariness of confessions -- review of ruling on motion to suppress. -- When the supreme court reviews a trial court's ruling on a motion to suppress, it reviews the evidence in the light most favorable to the State and makes an independent determination based upon the totality of the circumstances; the supreme court will only reverse a trial court's ruling on a motion to suppress if the ruling was clearly erroneous.

9. Criminal procedure -- voluntariness of confessions -- questionof reliability is for fact-finder. -- Questions about a statement's credibility and reliability, including whether it was recorded or in the accused's handwriting, are matters for the jury to resolve and not for the trial court to resolve when ruling on a motion to suppress; the jury is also entitled to resolve any factual dispute regarding conflicting testimony.

10. Criminal law -- custodial statements -- waiver of right to counsel -- when valid. -- The jury determines whether an appellant has the capacity to knowingly and intelligently waive his rights; a written waiver is not required to effect a valid waiver; the assertion of the right to counsel and the right to remain silent must be made with specificity; by merely answering questions, one may waive by implication his right to remain silent.

11. Criminal law -- custodial statement made voluntarily -- denial of motion to suppress not clearly erroneous. -- Where police investigators advised appellant of his rights, appellant acknowledged that he understood those rights, and, although he refused to sign a statement, appellant proceeded to answer questions, the supreme court concluded, after reviewing the evidence in the light most favorable to the State and given the totality of the circumstances, that the trial court was not clearly erroneous in denying appellant's motion to suppress.

12. Jury -- selection of -- loss of peremptory challenges cannot be reviewed on appeal. -- The loss of peremptory challenges cannot be reviewed on appeal, and the focus should be on persons actually seated on the jury.

13. Jury -- challenge to juror's presence at appellate level --factors required. -- In order to challenge a juror's presence on appeal, the appellant must demonstrate that he exhausted his peremptory challenges and that he was forced to accept a juror who should have been excused for cause; the supreme court declined to consider appellant's claim that he was forced to accept the juror where he merely claimed that she should have been removed via a peremptory strike.

14. Jury -- excusing juror for cause discretionary with trial court -- no abuse of discretion found in court's granting State's challenge for cause. -- The decision to excuse a juror for cause rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion; while statements that a venire person can be fair can make the person an acceptable juror, they are "not an automatic cure-all"; further, even if the trial court had abused its discretion, appellant failed to show prejudice, a prerequisite to a reversible-error claim; the trial court did not abuse its discretion in granting the State's challenge for cause.

Arkansas Public Defender Comm'n, by: Mac Carder,and Teri L. Chambers; and Beverly C. Claunch, for appellant.

Mark Pryor, Att'y Gen., by: Vada Berger, Asst. Att'y Gen., for appellee.

W.H."Dub" Arnold, Chief Justice.

Appellant, Brian Keith Bangs, was found guilty of two counts of capital murder in the deaths of his mother-in-law and father-in-law, Carol and Darrel Turner, rape, Class-B-felony kidnapping, and first-degree battery of his wife, Jennifer Turner Bangs, and felony theft of property, namely, a pickup truck belonging to Darrell Turner. Bangs was sentenced to two terms of life imprisonment in the Arkansas Department of Correction for the capital-murder convictions and to a total of eighty-five years' imprisonment for the remaining offenses. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2(a)(2) (1999). In the instant appeal, Bangs challenges the trial court's (1) denial of his motions for directed verdict regarding the capital-murder and first-degree battery convictions, (2) refusal to suppress his statements to an Arkansas State Police Investigator and the Stone County Sheriff, and (3) denial of his motion to strike two jurors for cause and grant of the State's motion to strike one juror for cause. We find no merit in appellant's arguments, and we affirm.

I. Motions for directed verdict

A. Standard of review

At the close of the State's case-in-chief, appellant moved for a directed verdict. The trial court denied the motion. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 131, 959 S.W.2d 400, 401 (1998) (citing Williams v. State, 329 Ark. 8, 16, 946S.W.2d 678, 682 (1997)). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401.

Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401 (1998). Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

B. Capital-murder convictions

For his first point on appeal, Bangs argues that the State failed to present sufficient evidence to support his two capital-murder convictions. Pursuant to Ark. Code Ann. § 5-10-101(a)(4)(Repl. 1997), a person commits capital murder if "with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person." Appellant contends that the evidence failed to establish premeditation and deliberation and that the only direct evidence supported his position that the shootings were an "impulsive act."

However, the State presented testimony that Bangs went to his estranged wife's home on the afternoon of the crime and hid in the home until he was discovered...