Cook v. State

Citation45 S.W.3d 820
Decision Date14 June 2001
Docket Number01-00224
PartiesKEYONO COOK, APPELLANT, V. STATE OF ARKANSAS, APPELLEE. CR01-00224 14 June 2001 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, CR99-2018, HON. JOHN W. LANGSTON, JUDGE, AFFIRMED. Annabelle Clinton Imber, Justice. Appellant, Keyono Cook, was convicted of capital felony murder, aggravated robbery, and theft of property. The jury sentenced him to life imprisonment without parole plus twenty-seven years in the Arkansas Department of Correction. Mr. Cook's only point on appeal has to do with the admissibility of two documents. He contends that the documents were not relevant, that their probative value was substantially outweighed by their prejudicial effect, and that they were introduced solely to prove that Mr. Cook was a bad person. We disagree and affirm. On
CourtSupreme Court of Arkansas

14 June 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, CR99-2018, HON. JOHN W. LANGSTON, JUDGE, AFFIRMED.

Annabelle Clinton Imber, Justice.

Appellant, Keyono Cook, was convicted of capital felony murder, aggravated robbery, and theft of property. The jury sentenced him to life imprisonment without parole plus twenty-seven years in the Arkansas Department of Correction. Mr. Cook's only point on appeal has to do with the admissibility of two documents. He contends that the documents were not relevant, that their probative value was substantially outweighed by their prejudicial effect, and that they were introduced solely to prove that Mr. Cook was a bad person. We disagree and affirm.

On April 13, 1999, Mr. Cook entered a Western Sizzlin with the purpose of robbing the restaurant. During the robbery, he shot and killed the manager, David Nichols. Three days later, a detective with the Little Rock Police Department stopped Mr. Cook's brother and co-defendant, Denaro Cook, who was driving a vehicle identified as the one used in the robbery. With Denaro's permission, the detective searched the vehicle and found a black notebook on the front seat. On top of the notebook he found a document entitled "Plan A and Plan B." Inside the notebook, on top of other papers, he found a rap song entitled "Give Up the Strilla." Mr. Cook admitted both to his involvement in the robbery and to being the author the two documents. Over his objections, both documents were admitted into evidence at trial.

The document entitled "Plan A and Plan B," was handwritten as follows:

Plan A Plan Blook around first and make sure don't nobody see

1) Wait by pay phone Wait across the street

2) See Target / walk toward him See Target /run across the street

3) Put strap to his back - Go back in Put strap to his back - Go back in

4) Take him to the office Take him to the office

5) Let him open the door Let him open the door

6) Make him give all the money including change

7) Tie him up and make him go to the freezer

8) get the keys and go out through the back door

9) lock the door back and throw the keys in the next 3 dump

10) walk down to the end of the alleyand take off clothes

and make sure you don't drop s**t

Plan A + Plan B = Done Deal

Mr. Cook authored the following handwritten rap song:

Give Up (The Strilla) By: Buck - shot

Look out 4 this muthaf**n killa

on the for realla n**a, you bets to give up the strilla

or getta, muthaf**n slugg assigned to yo a**

or you can do the s**t the easy way, give up the cash

as bad as my muthaf**n a** is doin,

you refuse, you loose, you snooze, you made the news

d**n, dude you cruel, that's what my peoples say

I ain't cruel, I choose, to be on a paper chase

gone of that hay, all about my feddy.

If I ain't got no strapp, my second choices my michete

I'm ready to do yo a** up n**a

And give up, give up, the f**n strilla, 4 realla

Chorus: Give up, Give up, Give up the Strilla.

If you don't, you don't. I'ma have to kill ya.

I creepin, keepin thing on the low.

Betta gett ready n**a, Im fits to pull a kickdoe.

Maintain to explain the game main, ain't a d**n thang

change, Buck-shots my muthaf**n name

all about my strilla and my feddy pimp

playin the biggest n**as, for some muthaf**n wimps

attempt to get rich on these streets

for n**az wit beef, I brings the Heast

Step back Hoe, if you didn't already know

I comes to yo hood, and crank up the show

and slowly but slowly unleash the beast

f**n hoes, killin n**as, and anybody with cheese

I love money like my muthaf**n fam-il-y

I want the money from you, and everybody around me

I'ma make yo funky a** die slow

but befo you die give up the strilla Hoe.1

I. Standard of Review

In matters relating to the admission of evidence under Arkansas Rules of Evidence 401, 403, and 404(b), a trial court's ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Arthur v. Zearley, 337 Ark. 125, 138, 992 S.W.2d 67, 74 (1999) (Rule 401); Greene v. State, 317 Ark. 350, 355, 878 S.W.2d 384, 387 (1994) (Rule 403); and Abernathy v. State, 325 Ark. 61, 64, 925 S.W.2d 380, 38 (1996) (Rule 404(b)).

II. Rule 401 - Relevancy

"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401. Mr. Cook argues that the two documents were not relevant because they were remote in time and the events described in the documents were not similar to the actual crime. We disagree.

The two documents were found three days after the crime on the front seat of the vehicle used in the crime. Both documents were written by Mr. Cook and both describe aggravated robbery scenarios. Whether Mr. Cook intended to commit aggravated robbery is a material issue in the case; so, the documents make the existence of his intent to commit aggravated robbery more probable than it would be without the evidence. Under these facts, we cannot say the trial court abused its discretion in finding the two documents relevant under Rule 401.

III. Rule 403 - Balancing Probative Value and Prejudicial Effect

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Ark. R. Evid. 403. Mr. Cook contends that the two documents were prejudicial because each describes criminal activity, but they were not probative because the State offered the documents to prove intent, and intent to kill is not an element of capital felony murder.

In this case, the criminal activity that Mr. Cook claims makes the documents prejudicial also makes them probative of his intent to commit aggravated robbery, the underlying felony for his capital felony murder charge. Here, we are dealing with capital felony murder where the murder is perpetrated "in the course and furtherance of" aggravated robbery. The culpable intent or mens rea relates to the crime of the underlying felony - aggravated robbery - and not the murder itself. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995). "Plan A and Plan B" was a ten-step plan to commit an aggravated robbery. The rap song, "Give Up the Strilla," discussed using a "strap" (or gun) to force a victim to "give up the cash" - again, an aggravated robbery. Because both documents were probative of Mr. Cook's intent to commit aggravated robbery, the trial court did not abuse its discretion in holding that the prejudicial effect did not substantially outweigh the probative value of the evidence.2

IV. Rule 404(b) -- Prior Bad Acts

Arkansas Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 952 S.W.2d 110 (1999). The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 602, 36 S.W.3d 324, 331 (2001).

In Williams, we reiterated the difference between the requirements for the admission of evidence to prove modus operandi and the test for admissibility under one of the exceptions to Rule 404(b). Id. at 599, 36 S.W.3d at 329. The two evidentiary concepts are different. The test for admission of prior bad acts under Rule 404(b) is whether the evidence offered has independent relevance to a fact of consequence in the case. Id. at 602, 36 S.W.3d at 331. Whereas, the test for the admission of evidence to prove identity using modus operandi has two requirements: "(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual." Id. at 599, 36 S.W.3d at 329. See Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000).

Mr. Cook again asserts that the two documents should not have been admitted into evidence because (a) the criminal activity described in each document is not substantially similar to the crime here, and (b) the State failed to prove that the documents were not remote in time. First, the degree of similarity between the prior bad acts and the present crime required for admission under Rule 404(b) may vary with the purpose for which the evidence is admitted. Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773, 778-79 (1995) (citing 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 112, n. 4 and accompanying text (2d ed.1994) ("To be probative, prior criminal acts must require an intent similar to that required by the charged crime, although it is usually said that the prior crime need not closely resemble the charged crime."); 1 John W. Strong, McCormick on Evidence § 190, n. 31 and accompanying text (4th ed. 1992) ("The...

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