Cassell v. State, CR

• Decision Date: 01 June 1981
• Docket Number: No. CR,CR
• Citation: 273 Ark. 59,616 S.W.2d 485
• Parties: Harold Davy CASSELL, Appellant, v. STATE of Arkansas, Appellee. 80-110.
• Court: Arkansas Supreme Court

Page 485

616 S.W.2d 485

273 Ark. 59

Harold Davy CASSELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-110.

Supreme Court of Arkansas.

June 1, 1981.

E. Alvin Schay, State Appellate Defender by Ray Hartenstein, Chief Deputy Appellate Defender, Little Rock and Gordon Cummings, Fayetteville, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

In the early morning hours of Sunday, December 21, 1975, a Springdale police officer, John Tillman Hussey, was murdered in a wooded area west of Fayetteville. The crime was particularly contemptible in that Hussey was shot four times in the back of the head with his own pistol while he was helpless, his wrists handcuffed behind him. Nearby a Travel-All van-type vehicle was set on fire and was still smoking when it was fortuitously discovered during the morning by a man who happened to be in the woods with his wife and children.

At about 3:49 that morning Officer Hussey had radioed to his headquarters that he was stopping a vehicle with license number JEX-966. A fellow officer, Brian Cobb, heard the radio communication and went at once to the place mentioned by Hussey, a point on the Fayetteville-Springdale highway. When Cobb arrived about four minutes after the radio message he found Hussey's police car parked by itself on the highway, its blue lights still flashing. Officer Hussey was not in the car and could not be found.

Prompt and thorough police work federal, state, and local enabled the prosecuting attorney to file a capital murder charge on January 26, 1976, against James Ray Renton and the appellant, Harold Davy Cassell. The information charged the defendants with having murdered Officer Hussey while he was acting in the line of duty. Bench warrants were issued, but some 30 months elapsed before Cassell was arrested in Montana in June, 1978, and returned to Arkansas in November of that year. The two cases were severed and tried separately. This appeal is from a verdict and judgment finding Cassell guilty and sentencing him to life imprisonment without parole.

Cassell's principal argument is that the State's proof, necessarily circumstantial for want of an eyewitness, was insufficient to support a verdict of guilty. Before narrating the testimony we again emphasize, as we have often done, that although the jury should be instructed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AMCI 106, that is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975); Abbott v. State, 256 Ark. 558, 561-562, 508 S.W.2d 733 (1974). The jury must be convinced of the accused's guilt beyond a reasonable doubt, but we, not having had the advantage of seeing and hearing the witnesses, are guided by the substantial evidence rule. Graves & Parham v. State, 236 Ark. 936, 370 S.W.2d 806 (1963).

The trial continued for days, resulting in a 1,597-page typewritten record. The testimony is not really in much conflict. Neither Renton nor Cassell chose to testify in this case. We state the course of events not in the order in which the witnesses testified but in a chronological sequence.

A principal witness for the State was Connie Marie Caves, who was not quite eighteen when she began living with Renton in Hot Springs. The two were joined by Cassell in September, 1975, about three months before Hussey's murder. For at least ten months, from September, 1975, until July, 1976, Connie traveled about with Renton, Cassell, and a third man, Carl Don McLaughlin, who committed suicide several months after the Hussey murder.

The effect of Connie's testimony was that the three men were professional criminals committing burglaries. They used assumed names, Renton becoming Jimmie Lee Ford and Cassell becoming Richard Green. The four traveled through various states together, stopping at motels and using Renton's Travel-All van and Cassell's brown Chrysler passenger car. The men each selected and bought the tools they needed in their criminal activities, but all the tools were kept in a bag in the possession of Renton, who appears to have been the leader of the small group. Before doing a "job" the men would decide what tools would be needed.

Connie testified that on December 18 (Thursday) the three men we have mentioned and a fourth man, Larry Lynn Wallace, left her in a motel in Dallas and started to Arkansas to do a job there. On Saturday, December 20, they checked into a Holiday Inn at Fayetteville. Cassell signed the register as Richard Green. During the afternoon the Travel-All van and the Chrysler were seen parked together in the motel parking lot, with four men standing by talking together. An employee of the Campbell-Bell store in Rogers testified that during the day he saw two or three times in the store a man he later identified as Renton, accompanied by two others he could not describe. The men weren't doing business. "They were just there."

The Campbell-Bell store was burglarized that night; about 30 coats were taken. The criminals may have become alarmed and left hurriedly, for they left the bag of tools, which Connie identified positively, having seen it many times. Frank Perry, who lived near the store, testified that at about 1:45 a.m. he saw a van-type vehicle and a passenger car driving "real fast" across an open field between his house and Campbell-Bell. He thought, but not with certainty, that the car was a Chrysler vehicle. An expert witness testified that a photograph of the tire tracks showed that they resembled the design of the tires on Cassell's car, but no positive identification was possible.

Officer Hussey, as we have said, radioed at about 3:49 that he had stopped a van (unquestionably Renton's). Hussey's car, when found by Officer Cobb, was some 15 to 20 miles south of Rogers, headed toward Fayetteville. Darrell Harp, who drove a car in delivering newspapers in the area, testified that between 3:30 and 4:00 he saw three vehicles stopped together. A passenger car was in front, a Travel-All or suburban type vehicle about 20 or 30 feet behind it, and a Springdale patrol car behind that. It was dark, and Harp could see only the patrolman between his vehicle and the Travel-All. Harp had said in an earlier statement that the passenger car could have been a Ford, but he was uncertain about it.

A defense witness, Charles Gillman, a semi-retired person who had done some police work with the military police and with a railroad, testified that he drove by and saw three vehicles at about 3:45 a.m. He said the first one was an off-white Ford sedan, the next an International Travel-All, and the third a Springdale police car. He saw the police officer standing there. He could not see inside the van, but there appeared to be several persons, possibly two or three, in it. The van had a Texas license plate. On cross examination he said he knew the officer was in a dangerous position. He was certain in his own mind the officer was in trouble, but he did not stop. He made no report of the incident until he happened to be stopped at a roadblock a week later. He said his first statements to the police were partly in error, in that he said the third vehicle was a Fayetteville police car, the van had an Arkansas license, and there were four persons in the van. The jury could have concluded from the testimony in the entire case that Gillman was also mistaken about the off-white Ford.

McLaughlin's sister testified that McLaughlin owned a white Ford in December, 1975, but there was no testimony that he had ever used such a car in his criminal activities. Connie testified she had never seen the vehicle. The sister testified that before her brother killed himself he telephoned her and said that he had killed a policeman in Arkansas and just couldn't forget about it. Connie testified on rebuttal that in June, 1976, she was in Seattle with Renton, Cassell, and McLaughlin. At that time, in the presence of the others, McLaughlin said that if he ever decided to take his own life he would leave a note or letter to let people know that he would take the blame for the murder, so that his friends would not be implicated. Cassell was in on the discussion, and "he confirmed that if he was killed or anything like that he would want it blamed on him, also." That shared willingness to have all the blame cast upon the first one to die suggests joint guilt, as would be the case if all four men were present when Hussey was shot four times. Connie also testified that once in a motel in Alabama Cassell said that he knew there was a warrant for his arrest, that he was wanted for murder, and that if he was caught he would give up.

We mention two other matters that occurred on the Sunday morning of the murder. At about 11:00 o'clock Renton and Cassell appeared at the home of John Paul Potter, a used car dealer in Oklahoma City. Renton and Cassell had used their assumed names in buying the Chrysler from Potter about 60 days earlier. Both men were nervous; Renton had shaved off his beard. They wanted to trade the Chrysler for another car. Potter's car lot was not open for business on Sunday, but he accompanied the two men to the lot and completed a deal by which the Chrysler was exchanged for another car.

Also on Sunday morning the discovery of the still smoking van was reported to the police. Hussey's body was found nearby, as was the license plate, JEX-966. In the ashes were snap buttons of the same kind as those on some of the coats stolen at Campbell-Bell.

Connie testified that the four men, Renton, Cassell, McLaughlin, and Wallace, returned to the motel in...