Calloway v. State, CR

• Decision Date: 09 October 1997
• Docket Number: No. CR,CR
• Citation: 330 Ark. 143,953 S.W.2d 571
• Parties: Tracy Trinette CALLOWAY, Appellant, v. STATE of Arkansas, Appellee. 97-398.
• Court: Arkansas Supreme Court

Page 571

953 S.W.2d 571

330 Ark. 143

Tracy Trinette CALLOWAY, Appellant, v.STATE of Arkansas, Appellee.

No. CR 97-398.

Supreme Court of Arkansas.

Oct. 9, 1997.

Jeff Rosenzweig, Little Rock, for Appellant.

Winston Bryant, Atty. Gen., Kelly Terry, Asst. Atty. Gen., Little Rock, for Appellee.

BROWN, Justice.

This appeal arises out of the murders of three children in Little Rock and the attempted murder of their mother.The appellant, Tracy Trinette Calloway, was convicted of three counts of murder in the first degree and one count of criminal attempt to commit murder in the first degree.She was sentenced to a total term in prison of 132 years.Her appeal raises three issues: (1) the propriety of a non-model jury instruction on accomplice liability, (2)the prosecutor's placing her own character at issue in closing argument, and (3)the trial court's discretion in refusing to grant defense counsel surrebuttal argument following the prosecutor's rebuttal argument.We affirm the judgments of conviction.

On June 4, 1995, Riley Dobi Noel, Terry Carroll, Curtis Cochran, and Tracy Calloway were riding in Little Rock in Cochran's car and, according to Calloway, "getting high" on drugs.They went to the home of Mary Hussian, where Calloway got out of the car and followed Noel and Carroll to the house.Just before they entered the house, Noel handed her a handgun, and she testified that she returned it immediately.Noel burst into the house, and Calloway followed, stopping just inside the doorway.Noel told three children in the residence to get down on the floor, and Calloway testified that she told them to do what Noel said.She watched Noel shoot each of the children in the head and kill them.The victims were Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17.According to Curtis Cochran, the murders were in retaliation for Yashica Young's involvement in the death of Noel's brother.Yashica Young was another child of Mary Hussian.Following the murders, Calloway testified that she ran from the house with Carroll.

On June 6, 1995, the Little Rock Police Department focused its investigation on a search of Calloway's neighborhood in an effort to locate a suspect named "Tracy," and Calloway surrendered herself to police officers that same day.Calloway gave a full statement indicating that she was with the young men at the time of the murders but stating that she was not aware of an intention to commit the killings.

At trial, the prosecutor's theory of the case against Calloway was one of accomplice liability.Calloway's defense was that she did not know what Noel and Carroll intended to do at the Hussian house and that she did not assist them in any way in the commission of the murders.The prosecutor presented testimony from Curtis Cochran, who was driving the vehicle that day.Cochran testified that everyone in the car knew where they were going and what Noel intended to do because Noel announced it in the car.According to Cochran, Noel gave Calloway a .45 caliber handgun while they were in the car, and she still had it when they went to the Hussian house.

Jack Thomas, a neighbor of the victim, also testified for the State and stated that he saw Calloway run from the Hussian house and that it appeared as though she was carrying a gun.Kyle Jones testified that he arrived at the Hussian residence with his fiancee, Marcel Young, and saw three people standing in the carport: Noel, Cochran, and Calloway.The threesome asked Marcel and Kyle if Yashica Young was home, and Kyle said that he would check.Kyle and Marcel entered the house, and Kyle went to the back of the home to tell Marcel's mother, Mary Hussian, that they were home.He heard someone burst in through the front of the house and heard Marcel scream.Kyle and Mary Hussian ran toward the front of the house and were intercepted by Carroll, who was carrying a shotgun.They retreated to the bedroom.Kyle went into the bathroom and closed the door.Mary Hussian hid behind the bed and dialed 911.Kyle testified that he heard three shots come from the front room and that he heard the shotgun blast in the bedroom just before he escaped through the window.Kyle eventually came back to the house and told police officers what he had seen.

Mary Hussian told the same story to the jury as Kyle did.She testified that when she hid behind the bed to call 911, Carroll yelled for her to come out from behind the bed.She pleaded with him not to kill her or her children.She eventually rushed Carroll, and they fought for control of the shotgun.The shotgun discharged in the struggle, and the shot went through the roof.Mary Hussian gained control of the gun and chased Carroll back through the house, where she saw her three murdered children lying on the floor.Carroll left through the front door.Mary Hussian saw three people in the house, but could only identify Carroll and Noel and not Calloway.

The State also contended at trial that Calloway's original statement to the Little Rock police officers and her trial testimony were in conflict.She first told police officers that she was in the car and that Cochran and she picked up Carroll and Noel, but at trial she testified that the threesome picked her up to give her a ride home.She also testified at trial that she did not see any guns in the car until the group was about to go into the Hussian house.However, it was established at trial that two weapons were used at the murder scene--a .45 caliber pistol and a shotgun.Calloway admitted that Carroll was in the back seat of the two-door car with her but maintained that she did not see the shotgun.

The jury convicted Calloway of the four charges and subsequently sentenced her as stated above.

Calloway's first assignment of error is that the trial court used a model jury instruction, AMCI 2d 401, instead of the amended AMCI 2d 401 proffered by her.AMCI 2d 401, which was given to the jury, reads as follows:

In this case, the State does not contend that Tracy Calloway acted alone in the commission of the offenses of Capital Murder and Criminal Attempt to Commit Capital Murder.A person is criminally responsible for the conduct of another person when she is an accomplice in the commission of an offense.

An accomplice is one who directly participates in the commission of an offense or when causing a particular result is an element of an offense, acting with respect to that result with the kind of culpability sufficient for the commission of that offense, she:

Solicits, advises, encourages, or coerces the other person to engage in that conduct causing the result; or aids, agrees to aid, or attempts to aid the other person in planning of the conduct causing the result.¹

Calloway sought to add the following language relating to "mere presence":

Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice.

The language was refused, and defense counsel proffered the amended instruction for the record.

In reviewing the trial court's decision to use a model jury instruction over a non-model instruction, this court has held that the trial court should not use a non-model instruction unless there is a finding that the model instruction does not accurately reflect the law.SeeWilliams v. State, 329 Ark. 8, 946 S.W.2d 678(1997);Hill v. State, 318 Ark. 408, 887 S.W.2d 275(1994);Moore v. State, 317 Ark. 630, 882 S.W.2d 667(1994).In support of her contention that the model instruction should include a "mere presence" component, Calloway cites several cases which have held that mere presence is not enough to establish that an individual was an accomplice.SeeVickers v. State, 313 Ark. 64, 852 S.W.2d 787(1993);Ford v. State, 296 Ark. 8, 753 S.W.2d 258(1988);Spears v. State, 280 Ark. 577, 660 S.W.2d 913(1983).

This court has twice specifically rejected the argument that AMCI 2d 401 should be altered to reflect the notion that mere presence is not enough to establish accomplice liability.SeeWilliams, 329 Ark. at 21, 946 S.W.2d at 685;Webb v. State, 326 Ark. 878, 935 S.W.2d 250(1996).Our reasoning for these holdings is sound.In order to prove that a person is an accomplice under AMCI 2d 401, one must prove that the defendant was engaged in activity which aided in the commission of the crime and, thus, was not merely present.If the State proves that a person was present when a crime was committed but does not further prove beyond a reasonable doubt that person in some way participated in the crime, the State has not met its burden.It would be redundant for the trial court to instruct the jury on what does not give rise to accomplice liability in addition to what does.Moore, 317 Ark. at 636, 882 S.W.2d at 669.

Calloway attempts to distinguish Webb v. State, supra, by contending that this court found that the facts in Webb did not support a "mere presence" instruction.However, this argument does not contend with the more...