Brooks v. State

• Decision Date: 23 March 1992
• Docket Number: No. CR,CR
• Citation: 827 S.W.2d 119,308 Ark. 660
• Parties: Billy BROOKS, Appellant, v. STATE of Arkansas, Appellee. 91-196.
• Court: Arkansas Supreme Court

Page 119

827 S.W.2d 119

308 Ark. 660

Billy BROOKS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-196.

Supreme Court of Arkansas.

March 23, 1992.

Larry W. Horton, Malvern, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

On June 14, 1991, the appellant, Billy Brooks, age seventeen, was convicted of aggravated robbery, rape, and kidnapping and sentenced to two terms of life imprisonment plus a term of forty years, respectively. He advances multiple arguments for reversal of his conviction. We hold that his argument regarding double jeopardy and his aggravated robbery conviction has merit, and we reverse that conviction and vacate that life sentence. We affirm his conviction and life sentence for rape and his conviction and forty-year sentence for kidnapping.

On February 28, 1991, at about 6:10 in the evening, the victim, who was co-owner of a grocery store in Malvern, had gone back to her store to get some items for supper. On entering the store, she observed a boy riding a bike nearby and then saw the appellant walking toward her. When she left the store with the groceries, she was accosted by the appellant, who yelled at her and asked where her husband was. She replied that he was at home, whereupon Brooks grabbed her by the arm and neck, placed a knife at her throat, and said, "Don't lie to me, you damn bitch." He demanded that she open the grocery store and asked where the money was kept because he wanted money. When she answered that she did not have a key to that door, the appellant stabbed her in the hand, severing an artery and nerve.

The boy on the bicycle told the appellant to leave the victim alone, and the appellant replied that he would kill the boy, too. The woman shouted to the boy to go get help. The appellant again demanded entry into the store, and when the victim answered that she could not unlock the door, he stabbed her a second time. When the victim tried to show that her key did not fit the door, she testified, "... he jerked the key out of my hand and just, like he just went berserk, he just started stabbing me." Her lung was punctured as a result of the stabbing.

The woman was then dragged by the appellant 170 feet behind the store to an unoccupied car, where he told her that he was going to rape her. He removed her clothes from the waist down and pulled his clothes down and penetrated her. Following that, he said that he was going to rape her again. He then said that he was going to take her out of town. He tried to start the car but to no avail. The police arrived, and he was arrested.

The appellant spent the night in the Hot Spring County jail and in the morning was found in his cell naked and wrapped in toilet paper. He was transported to the Malvern police station where, at about 10:36 a.m., he was given his Miranda warnings. He was given the warnings a second time at 12:23 p.m., and subsequent to the second warnings, he gave a statement that placed him at the crime scene, although he denied committing the crimes for which he was charged. In his statement, he admitted drinking a considerable amount of vodka and taking LSD before the attack on the woman.

At trial on June 14, 1991, the appellant moved for a directed verdict on the three charges following the state's case. The circuit court granted the motion on the aggravated robbery charge on the mistaken belief that aggravated robbery required that something be taken from the victim. At the end of all of the evidence, the court reversed itself and instructed the jury on the aggravated robbery charge. The jury convicted the appellant of aggravated robbery as well as rape and kidnapping and sentenced him to two life terms and forty years.

I. Double Jeopardy

After the state rested and the appellant had moved for a directed verdict on all counts due to the insufficiency of the evidence, the following discussion took place among the circuit court, the prosecutor, and defense counsel:

THE COURT: As to aggravated robbery, I think it should be granted. So, it's granted as to the offense of Aggravated Robbery.

PROSECUTOR: Your Honor, I don't think it should be granted as to Aggravated Robbery. The fact that he didn't complete the robbery, the fact that he told her to open the door, he wanted the money, that constitutes Aggravated Robbery.

THE COURT: That's just an attempt, isn't it.

DEFENSE COUNSEL: Just an attempt.

PROSECUTOR: Well, are you going to instruct them on attempted aggravated robbery? It becomes aggravated robbery when you put someone in physical jeopardy.

THE COURT: You also have to take something from them. Otherwise, it's just aggravated assault.

DEFENSE COUNSEL: Your Honor, I believe that our argument all along has been that battery, first degree is a lesser included of aggravated robbery.

THE COURT: I know what your arguments have been but the question is whether there is evidence that supports submitting the issue of aggravated robbery.

DEFENSE COUNSEL: I don't believe there is, Your Honor.

PROSECUTOR: I think that if I tell you that I am going, I want your money and point a gun at you, even if I never did anything, I'm guilty of aggravated robbery.

THE COURT: I believe it's aggravated assault. I don't think it's aggravated robbery.

DEFENSE COUNSEL: Motion is granted on that?

THE COURT: The motion is granted on the charge of aggravated robbery.

At the conclusion of all of the evidence, the court reversed itself and this colloquy ensued:

PROSECUTOR: Before the State rests, I want to make sure it's in the record that the Court has reversed its earlier ruling on aggravated robbery.

THE COURT: Right, battery will be a lesser included offense of aggravated robbery.

DEFENSE COUNSEL: Your Honor, we're going to object to the Court's reversal of the ruling. The Court rules in favor of the defendant on a directed verdict. That means that there has been a verdict of acquittal by the Court's order entered and to submit this to the jury at this point in time, constitutes double jeopardy in violation of the United States Constitution.

THE COURT: The Court reverses the ruling. The matter of aggravated robbery may be submitted to the jury.

....

THE COURT: All right, Mr. Horton, let's complete our record on the aggravated robbery charge. You made a motion for a directed verdict on the aggravated robbery charge at the close of the State's case. The Court was under the misunderstanding that aggravated robbery required an actual theft of property and granted the motion at a bench conference where the jury could not hear. The Court was then informed that only attempted theft of property was necessary to constitute aggravated robbery and has reversed that dismissal of the case and reinstated it for the jury's consideration. The Court simply corrected the error that the Court made, the error of law that the Court made. The jury is not present now. They have not been instructed and I'm going to let you make any further record that you want to on that issue.

DEFENSE COUNSEL: Your Honor, the defense's position is that the Court has issued a ruling of a directed verdict on the charge of aggravated robbery. A directed verdict is a judgment of acquittal. It is a judgment of acquittal just as if a jury had returned a judgment of acquittal. To now reinstate the charge, is not harmless error. It constitutes a second charge for the same offense and violates the double jeopardy clause of the Constitution of the United States. We ask the jury not be given that instruction, Your Honor.

THE COURT: Denied.

This precise double-jeopardy issue is one of first impression in Arkansas, and we turn to the U.S. Supreme Court and to other jurisdictions for guidance. The Supreme Court has made it clear that a decision that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

In Smalis, the Court was presented with an analogous issue to that before us in the present case. The defendant demurred at the end of the state's case on grounds of insufficient evidence, and the trial court granted the demurrer. The state then sought to appeal, and the Pennsylvania Supreme Court remanded the case to the trial court for trial on the merits. The U.S. Supreme Court reversed, holding that the Double Jeopardy Clause bars a post-conviction appeal. A dismissal for insufficient evidence, such as we have before us in the present case, amounts to an acquittal even when the dismissal is based on an erroneous evidentiary ruling. Sanabria v. United States, supra.

Several jurisdictions have concluded that granting a motion for insufficient evidence on a charge at the close of the state's case precludes the trial court from reversing that decision and submitting the charge to the jury. See Lowe v. State, 744 P.2d 856 (Kan.1987); State v. Carney, 220 Neb. 906, 374 N.W.2d 59 (1985); In the Matter of Dowling, 98 Wash.2d 542, 656 P.2d 497 (1983).

In Lowe v. State, the defendant was charged with burglary and misdemeanor theft. The trial court dismissed the theft charge on its own motion. The next day the court reversed its decision, and the trial resumed. The jury found the defendant guilty of theft and acquitted on the burglary charge. On appeal, the Kansas Supreme Court relied on Smalis v. Pennsylvania, supra, and reversed the conviction on the basis that jeopardy attached at the trial and the dismissal constituted an acquittal of the theft charge.

The case of State v. Carney is similar. After the state rested its case for theft, the defense moved for acquittal for failure to make a prima facie case, and the...