Burks v. State
| Decision Date | 07 December 2022 |
| Docket Number | CR-22-130 |
| Citation | 2022 Ark. App. 494,657 S.W.3d 180 |
| Parties | Kaylen BURKS, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.
Kaylen Burks was convicted by a Garland County jury of second-degree murder committed with a firearm and three counts of committing a terroristic act. He challenges the sufficiency of the evidence supporting the trial court's finding that he was an accomplice. He also argues that the trial court erred when it failed to include any African American jurors on the jury panel and when it instructed the jury on the lesser-included offense of second-degree murder. We affirm.
Burks was charged with one count each of first-degree murder and first-degree battery (both committed with a firearm) and three counts of committing a terroristic act stemming from an incident on Mother's Day, May 12, 2019. Burks had been invited by his girlfriend, Whitney Finley, to go out on a boat in Hot Springs with her family and another family. After the excursion, both families and Burks went back to a house on Lily Ruth Court. While there, Whitney got into an argument with her brother, Donyell King. Burks intervened on her behalf, and after a verbal altercation and brief scuffle, he left the residence in his black Dodge Challenger, accompanied by Whitney, who was driving his car.
At Burks's trial, Whitney testified that, as she drove, Burks initially was quiet but subsequently became upset and angry, punching the dashboard of the car. At one point—with the car in motion—Burks opened his passenger-side door, and Whitney thought he was going to jump out, so she stopped the vehicle. At the time, they were in downtown Hot Springs. Whitney stated that while stopped, Burks was on the phone, telling the other person he "was jumped and felt punked."
Whitney explained that when it became apparent that Burks was not going to calm down and drive her back to Nashville, she got out of the car and started walking back to Nethisa McGowan's house on Lily Ruth Court. Whitney called her mother, Shaunelle King, and asked her to come get her, but then she called Burks, who agreed to take her back to Nashville. Whitney walked back to Burks's car, and he then drove to a parking lot next to the Central Avenue fountain in downtown Hot Springs. Once there, Burks got out of the car and went over and talked to another person who was in a white car. Whitney said that she joined them and heard the other person attempting to dissuade Burks from retaliating.
During that conversation, two other cars pulled into the parking lot directly behind Burks's Challenger. Burks then ran and got back into his car; Whitney followed, jumping in after him. All three of the vehicles were caught on Central Avenue's downtown surveillance cameras and, a short while later, on a residence's Ring doorbell camera as they all passed 114 Lily Ruth Court.
Despite Whitney's protests, Burks drove back to the house on Lily Ruth Court. On the way, Whitney attempted to call her mother and sister and warn them. Burks drove onto Lilly Ruth Court, turned around in the cul-de-sac at the end of street, and parked in front of the house. Whitney got out of the car and went to the front door, but no one was home. She called her mother again and was able to reach her, telling her that Burks had "called some people" and that he had come back there to fight. Whitney's mother told her that Donyell had taken her husband, Donald King, Nethisa, and her to get cigarettes.
The other cars that followed Burks onto Lily Ruth Court also had turned around in the cul-de-sac and parked behind Burks's car. Whitney, who had gone to the back of the house to try the back door, was walking back to Burks's car when she saw her brother, Donyell, along with their parents, pull up in her mother's Chevy Cruze. At that time, Burks was standing in the street, and when Donyell drove past, Burks attempted to open Donyell's car door. By the time Whitney got back down to the street, Burks had managed to get the car door open, and he and Donyell were arguing. Whitney attempted to close the car door and push Burks away from it.
At that point, another person—described as having a slight build, "shoulder length dreads," and wearing a "wife beater"—approached Whitney and Burks and asked, "Is this the n—r you beefing with?" After asking Burks the question, the person—identified by other witnesses as Burks's cousin, Tommy Woodfork, Jr.—fired four shots into the Chevy Cruze driven by Donyell. After the shots were fired, Burks fled on foot, and Tommy, along with his passengers, Ashley Smith and Alana Bogy, drove off in the car in which they had arrived. Whitney said that she fell to the pavement when the shots started and then had to move to keep from getting run over by the fleeing car.
Nethisa—the fourth passenger in the car driven by Donyell—testified that when they returned to her house, there were "a whole bunch of people in front of [her] house." Nethisa explained that after Donyell had turned around in the cul-de-sac, someone started yanking on the car door. She explained that she yelled for him to keep going but that a second person appeared directly behind Burks and asked, "Is that [sic] that n—r?" and fired three shots. Nethisa said that she and Donald both got out of the car and ran toward her house but that Donald, who had been shot in the back, collapsed on the porch.1
Ashley testified that, at the time of Donyell's murder, she lived in Malvern, Arkansas, with Alana and Jason Burks, who were dating at the time. Ashley described how she and Tommy were friends and that Burks, along with Tommy and Jason, had all grown up together with their grandmother and were like brothers.
Ashley described how, on the day of the incident, Tommy had come to her house to visit and had accompanied her when she took dinner to Jason, who was at work. During their errand, Ashley said that Tommy got a call from Burks, who told him he had gotten into a fight. Ashley said that she and Tommy went back to her house, picked up Alana, and drove to Hot Springs in Ashley's car. Ashley said that Tommy was driving and that they first stopped at the Central Avenue fountain where Tommy talked to his father, who told them where Burks had gone.
Ashley testified that once they were on Lily Ruth Court, Tommy parked the car and got out—then she and Alana got out as well. Ashley noted that Tommy went straight to where Burks was standing, directly in front of his black Challenger, "a couple of feet" from where they were parked. Ashley further stated that there were people "exchanging words back and forth trying to get [Donyell] out of the car." She explained that as this was going on, Tommy, who was standing beside Burks, pulled out a gun and started shooting into the car. Ashley said that she—along with Tommy and Alana—ran back to her car and that she "was in shock" as Tommy quickly sped away from the scene of the shooting taking back roads and driving back to Malvern. During the ride back, Ashley said that Tommy told them, "Don't say nothing," and Once in Malvern, Tommy pulled up to a stop sign, another car pulled up beside him, and the people in the other car asked Tommy to get into their vehicle so they could "handle it from there." Tommy complied, and Ashley said that was the last time she saw him.
Alana, who lived with Ashley in Malvern, corroborated much of Ashley's account of what happened the night of the incident. She described how Burks was "tussling" with Donyell "through the car window" when someone pulled him away, and shots were fired.
Five days later, Burks was taken into custody, and he gave a statement to Detective Mark Fallis of the Hot Springs Police Department. During the questioning, Burks was reluctant to identify the person who had shot into the car, killing Donyell and seriously wounding Donald. In Burks's first version of what happened, he claimed that after returning to the Lily Ruth Court house a second time, he got out of his vehicle and was in the street when Donyell drove up behind him. Burks claimed that he asked Whitney's mother, Shaunelle, who also was in the car, to take Whitney back to Nashville. Burks said that Shaunelle told him he would have to drive her because she had taken up for him during the earlier argument. Burks said that he asked Donyell, "Why didn't you just fight me?" Following his question, Burks said he heard Shaunelle say, "Just give me the gun," and he "took off running" and "did not look back."
During questioning, Detective Fallis disclosed to Burks that he had spoken to witnesses who had traveled to Hot Springs with the shooter, and he had also viewed video footage of Burks's car in downtown Hot Springs, where he had stopped and was met by other people who followed him back to the Lily Ruth Court house. When Detective Fallis suggested to Burks that "[y]ou called your boys and you went back to that house and shit went bad," Burks responded that he was right. Burks also told Detective Fallis that he knew he was going to prison and that he had to "do time for a lick." At other times, Burks told Detective Fallis that he was not the reason that it all happened, but he still refused to identify the shooter. However, Burks admitted that his intention was for there to be a confrontation with "that side and that side and if anything else [was] going on, then that was between me and Donyell."
Additionally, the video exhibits admitted at trial contradicted Burks's explanation of the series of events. First, as Detective Fallis testified, the downtown surveillance video showed Burks's Challenger, along with the vehicle Tommy was driving and a third vehicle, all leaving the same Central Avenue parking lot at the same time...
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