Cleveland v. State

• Decision Date: 15 November 1993
• Docket Number: No. CR,CR
• Citation: 865 S.W.2d 285,315 Ark. 91
• Parties: Bennie CLEVELAND, Appellant, v. STATE of Arkansas, Appellee. 93-188.
• Court: Arkansas Supreme Court

Page 285

865 S.W.2d 285

315 Ark. 91

Bennie CLEVELAND, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-188.

Supreme Court of Arkansas.

Nov. 15, 1993.

Supplemental Opinion on Denial of

Rehearing Dec. 13, 1993.

Thomas D. Deen, Dermott, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

In this case, the appellant, Bennie Lamar Cleveland, seeks to overturn his conviction on charges of capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property. He raises five points on appeal, but none of his arguments merit reversal.

The record reveals that Cleveland had been involved in a turbulent relationship with Paula Easter of McGehee, Arkansas, for about two years when it ended in December 1991. At the time, Ms. Easter was employed as a cook by Cash's Quik Check, a convenience store in McGehee. The appellant persisted in attempting to contact Ms. Easter, phoning her and her aunt repeatedly and going once to her workplace, in violation of orders from his parole officer, Danny Calvert.

Subsequently, on the evening of December 29, 1991, Cleveland and a companion, Wendell Moton, drove to Cash's Quik Check. The appellant was armed with a .22-caliber pistol, and Moton carried a shotgun. Moton went inside, purchased some ice cream, and returned to the car to report that Ms. Easter was at work. Then Cleveland and Moton together entered the store with their weapons.

Ms. Easter and a co-worker, Michelle Nagel, were seated in a booth with a customer, Willard Blackmon. The appellant approached the table and fired at Ms. Nagel, killing her where she sat. Mr. Blackmon tried to escape, but Cleveland shot and wounded him. Next, he chased Ms. Easter through the building and ordered her to come out of a cooler where she had attempted to hide. She told Cleveland, in response to his question, that she did not know how to open the cash register.

The appellant took Ms. Easter outside and ordered her to get in the car. He then returned to the store, where he was observed by the wounded Mr. Blackmon, and emerged shortly afterward, carrying a handgun and a box containing cash. Cleveland then drove to Little Rock, where he left Moton, and began an odyssey that would eventually take him and Ms. Easter to New Jersey, where they were arrested by a state trooper on January 4, 1992.

A jury trial was held before the Desha County Circuit Court in July 1992. Cleveland was convicted on all charges. The kidnapping and aggravated robbery charges were merged in the capital murder conviction, and the appellant was sentenced consecutively, under an amended judgment, to life without parole for the capital murder of Michelle Nagel, thirty years for the attempted capital murder of Willard Blackmon, and ten years for the theft of property.

I. Motion for directed verdict on aggravated robbery

At the conclusion of the State's case, the appellant moved for a directed verdict on the issues of aggravated robbery and kidnapping "as a portion of" the first and second counts of the amended information, which covered, respectively, the capital murder and attempted capital murder charges. On appeal, Cleveland actually argues only with respect to the underlying aggravated robbery charge.

On appeal, before considering other assignments of error, this court determines the sufficiency of the evidence. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). An appeal from the denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993).

Substantial evidence is that evidence which is forceful enough to compel a conclusion, one way or the other, beyond suspicion or conjecture. Gunter v. State, supra. We view the evidence in the light most favorable to the State. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

Cleveland contends that there was simply no proof of any prior intent on his part to commit a robbery at Cash's Quik Check. Instead, he argues, the evidence shows that the murder of Michelle Nagel and the shooting of Willard Blackmon occurred before the act of robbery. The appellant asserts that the proof indicates that he re-entered the convenience store after the shootings and after Ms. Easter had been placed in the automobile. The entire sequence of events, he claims (citing the testimony of his co-defendant, Wendell Moton), revolved around his relationship with Ms. Easter.

Other testimony, however, suggests a closer relationship between the shootings and the robbery. Jo Ann Owens, the store manager, stated that she was called to the business at about 10:00 p.m., shortly after the crimes were reported, and that she discovered that a pistol and a money box were missing. She also found that the cash register contained no large-denomination bills. Ms. Owens determined that approximately $400 in cash had been taken.

Ms. Easter testified that, after placing her in the car, Cleveland went back inside the store and returned with her purse and the money box which was ordinarily kept under the counter beneath the cash register. Moton corroborated this testimony, adding the detail that the money box was "beige" in color.

The most compelling evidence came from Mr. Blackmon, who had been shot in the back and arm. As he lay upon the floor, pretending to be dead, he heard one of the co-defendants say, "You got the money sack. Let's go. Let's go." Presently, he saw Cleveland come back inside. "He had a key in his hand," Mr. Blackmon testified, "and put it in the cash register and tried to open it.... Then when he couldn't get it, he went on back out the door."

It appears that Cleveland, on appeal, is urging that the sequence of events is dispositive of the question of his "intent to rob"--i.e., he suggests that the robbery was an afterthought because it occurred after the murder had been committed. Yet, as this court declared in Grigsby v. State, 260 Ark. 499, 508-09, 542 S.W.2d 275, 280-81 (1976) Where the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. [Citations omitted.] The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration. [Citations omitted.]

... Where the circumstances permit an inference that the killing and the robbery were all part of one transaction, the state is not required to prove intent to commit the felony by direct evidence. [Citations omitted.] ...

(Emphasis added.) It is the close proximity of events, rather than their particular order, that makes possible an inference of a single continuous transaction.

These principles have recently been reaffirmed in Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993), where we held, quoting Grigsby, that when the defendant had been placed at the scene of the crime approximately one hour before the body of a murder victim was discovered and when money previously in the victim's possession was missing, the jury was justified in deciding that the robbery and murder were one continuous transaction.

So, too, in Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992), we found sufficient circumstantial corroborating evidence to establish robbery as the underlying felony in a capital felony murder case. There, the owner of a building in which the victim engaged in a bootlegging enterprise testified that he had visited the victim on the night of the murder and that he found him alone, in good health, and well-provisioned with beer and whiskey. On his return the next morning, however, he discovered the victim lying in a pool of blood and about six cases of beer and twenty half-pints of vodka and whiskey missing, along with some money he had given the victim the night before.

In Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), there was no direct evidence of the defendant's intent to rob his victim before murdering him, though there had been testimony presented regarding the defendant's financial situation and his belief that the victim made a lot of money. We shifted the focus, however, to the actual criminal episode: "The circumstantial evidence consisting of the close proximity of time and place of the killing and the taking of the decedent's property so as to make it all one transaction is sufficient to allow the jury to conclude the killing occurred in the course of a robbery." 306 Ark. at 389-90, 815 S.W.2d at 380.

Here, as in the cited cases, the robbery and the murder occurred in close proximity to each other. A victim-witness stated that one of the co-defendants mentioned a money bag before leaving the store. Two other witnesses agreed that, after shooting two people and forcing a third to accompany him, Cleveland went back to the store and returned to the car with a money box. The store manager testified that a pistol, a money box, and $400 in cash were missing when she was called to the scene at about 10:00 p.m. The jury had before it enough evidence to indicate that the robbery and the murder formed a single continuous transaction. The trial court did not err in refusing to grant Cleveland's motion for a directed verdict.

II. Supplemental jury panel

By the third day of jury selection, the regular panels of both divisions of the circuit court were exhausted. The trial judge directed the circuit clerk to draw a supplemental panel, using variants of two random numbers--17 and 82--selected by the court for pulling the district-wide master jury list. The circuit clerk, in turn, gave the numbers to an employee, who ran them through a computer and generated one hundred fifty-five names. The trial judge then...