Cleveland v. State, CR

• Decision Date: 23 September 1996
• Docket Number: No. CR,CR
• Citation: 930 S.W.2d 316,326 Ark. 46
• Parties: Bennie Lamar CLEVELAND, Appellant, v. STATE of Arkansas, Appellee, 96-186.
• Court: Arkansas Supreme Court

Page 316

930 S.W.2d 316

326 Ark. 46

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

No. CR 96-186.

Supreme Court of Arkansas.

Sept. 23, 1996.

Alvin Schay, Little Rock, for appellant.

Brad Newman, Assistant Attorney General, Little Rock, for appellee.

BROWN, Justice.

This is the third time that we have considered matters relating to appellant Bennie Lamar Cleveland's crimes committed on December 29, 1991. We first affirmed the judgments against Cleveland for capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property. See Cleveland v. State, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993). The United States Supreme Court, however, vacated our decision and requested that we reconsider the appeal in light of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). We did so and reversed the judgments and remanded the matter for a new trial. See Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994). In July 1995, Cleveland was retried and convicted of first-degree murder, attempted capital murder, and theft of property. He was sentenced to life in prison for first-degree murder, twenty years for attempted capital murder, and five years on the theft-of-property charge, with all sentences to run consecutively. Cleveland now raises one issue on appeal: that the trial court erred in failing to declare a mistrial based on his Batson objection. We hold that there is no basis for reversal, and we affirm.

On December 29, 1991, at approximately 9:00 p.m., Wendall Moten got out of a car driven by Cleveland and entered Cash's Quick Check, a convenience store in McGehee. Moten later testified that his purpose was to determine whether Paula Easter, who was employed as a cook at Cash's, was there. Moten returned to the car, informed Cleveland that Easter was in the store, and shortly thereafter, Cleveland entered Cash's brandishing a loaded .22 caliber pistol. Moten accompanied him armed with a shotgun, which was fired into the wall. Easter, Michelle Nagle, who was a cashier at Cash's, and a customer named Willard Blackmon were in Cash's at the time.

Cleveland approached the booth where Easter, Nagle, and Blackmon were talking and said: "I told you that no police could keep me away from you." By the time the three realized what was happening, he fired a single shot at Michelle Nagle. The bullet entered her right arm and exited into her upper chest, which caused her to die almost immediately. The State's firearms expert testified that, in his opinion, the shot was fired from a distance of two to four feet.

Willard Blackmon attempted to escape through a door at the rear of Cash's, but Cleveland prevented this by shooting Blackmon in the back and in the arm. Blackmon testified that he lay silent and still on the floor to feign death and avoid being shot again. He also stated that he saw Cleveland attempting to open the cash register with a key, but that Cleveland failed to do so.

Easter attempted to escape too but did not succeed. She testified that she ran to the kitchen to get hot grease to throw on Cleveland but that the grease was cold. She stated that she threw a trash can at him and then ran and hid in the store's cooler. Easter came out of the cooler after Cleveland told her that if she did not do so, she would never see her daughter again. Easter, Moten, and Cleveland then left Cash's and went to the car parked in front of the store. Cleveland returned to the store and came back to the car with Easter's purse and a metal box from Cash's that contained money and food stamps. The testimony was unclear as to whether he also returned with a .357 magnum pistol taken from the store.

After leaving Cash's, the three went to Little Rock, where they stopped for crack cocaine and later checked into a Motel 6. Moten left Easter and Cleveland and did not return. The next morning, Cleveland stole a truck and drove with Easter to Tennessee, Ohio, New York, and New Jersey. They were arrested in New Jersey. Easter told the arresting state trooper that she had been kidnapped. The trooper recovered two .22 caliber pistols from the truck and found Easter in possession of cocaine.

The pair were returned to Arkansas, and Cleveland was charged with capital felony murder or first-degree premeditated murder, attempted capital felony murder or attempted first-degree murder, aggravated robbery, kidnapping, and theft of property. On retrial, after reversal by this court, Cleveland defended himself pro se. He was convicted as set out above and sentenced.

For his sole point on appeal, Cleveland argues that the State violated the mandate of the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising six peremptory strikes against six black members of the venire. He contends that he made a prima facie showing of racial discrimination in jury selection, and that, with the exception of one of the six explanations, the prosecutor's reasons "could well be characterized as implausible or fantastic." He concludes that the State did not meet its burden of providing racially neutral explanations.

The State initially emphasizes in its brief: (1) Cleveland is black; (2) the State used only seven of its ten peremptory strikes; (3) the resulting jury consisted of eight black and four white members; and (4) the two alternate jurors were black. The State further argues on appeal that no prima facie case was made and that a prima facie case is a necessary first step for mounting a Batson objection. See Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993). The State's argument, however, was never made to the trial court. When Cleveland objected to the six peremptory strikes by the prosecutor, the trial court immediately asked the prosecutor for a racially neutral explanation. The prosecutor proceeded to explain his strikes, and the trial court subsequently denied Cleveland's motion for a mistrial. The prosecutor never argued that a prima facie case was not made, and, thus, the issue was not developed below.

This court addressed this identical point in Prowell v. State, supra, when we stated:

Although the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge, here, ...