Cook v. State
| Decision Date | 24 October 2002 |
| Docket Number | No. CR 02-329.,CR 02-329. |
| Citation | 350 Ark. 398,86 S.W.3d 916 |
| Parties | Denaro Shatour COOK v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Arkansas Public Defender Commission, by: Janice W. Vaughn and Llewellyn J. Marczuk, Little Rock, for appellant.
Mark Pryor, Att'y Gen., by: Kent Holt, Ass't Att'y Gen., for appellee.
Denaro Shatour Cook appeals his convictions for first-degree murder, aggravated robbery, and theft. Criminal liability in this case is based upon accomplice liability. Appellant asserts four issues on appeal. He alleges that there was insufficient evidence to convict him on first-degree murder, aggravated robbery, and theft of property. He also alleges that the trial court erred in refusing to instruct the jury on the lesser-included offense of robbery on the aggravated robbery charge, and that the trial court erred in refusing to instruct the jury on the lesser-included offense of felony manslaughter on the capital murder charge. Finally, he argues that the trial court erred in admitting hearsay testimony of Tim Dillard, who testified to what Appellant said to his brother before the robbery and murder. We affirm.
This case was appealed to the court of appeals, affirmed, and we granted the petition for review. When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999). Thus, we review the trial court's judgment, not that of the court of appeals. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).
On April 13, 1999, the Western Sizzlin restaurant on Rodney Parham Road in Little Rock was robbed shortly after closing. While the facts provided by the various witnesses are not entirely consistent on details, it appears that Appellant's brother Keyono, who will be referred to in the opinion by his nickname Buck for purposes of clarity, and others, came to the restaurant in two cars about closing time pursuant to a plan to rob Western Sizzlin. During the course of that robbery, manager David Nichols was murdered. Between $1800 and $2100 was taken.
Kyona Nicole Hyder was working at the Western Sizzlin that night and noticed that the doors were not locked at closing, and that other things that were normally done at closing were not being done. She testified that not only were the front doors left unlocked, but the back door was also unlocked. According to Kyona, the practice was that the back door was to be immediately relocked when it was used. Kyona went on to testify that she saw former employee Frank Barnes running along the outside of the building toward the back of the building as the restaurant was being closed. Kyona testified that she told Appellant she had seen Frank, and Appellant told her Frank had to use the bathroom. Kyona then testified that sometime later she saw Frank and Buck by the utility closet in the kitchen area of the restaurant. Buck was also a former employee of the restaurant.
According to Kyona, Buck had a ski mask on the top of his head. She spoke to Buck and Frank, but they did not answer. Rather, Buck motioned to her to be quiet. Kyona further testified that Appellant came to her later and said, "I think my brother killed the manager," and that when she questioned him, he said, "I'm for real, you know." According to Kyona, Appellant's demeanor was "weird and joking." She also testified that Appellant told her, "you can't say nothing," which she understood to mean that she should be quiet. Later she testified that it might have been Appellant's brother Torian who told her that. Torian also worked at the restaurant and was present that night. Kyona testified that she looked around for Nichols after she saw Buck and Frank, but did not find him, and that she waited around for Nichols to sign her time card, but he did not come out to sign it. She then testified that she eventually went home. According to Kyona, she later called back to the restaurant to see if they had found Nichols, and Appellant answered the telephone.
Sharronda Arnold also worked at Western Sizzlin and was present the night of the robbery and murder. She testified that the back door was unlocked all night that night, which she said was contrary to policy, and that normally the door was not unlocked. She also testified that she saw Buck and Frank drive up in the lot outside. According to her testimony, Appellant went outside and spoke to Buck and Frank for about ten minutes. Sharronda testified that upon his return, Appellant went to the back but did not take dishes or anything with him. Sharronda further testified that Appellant came back out front, and then went outside again and made hand motions to Buck and Frank to come inside. Sharronda then testified that when Appellant came back inside he said "they were fixing to rob the place." She testified that Appellant was laughing. She also testified that after Appellant told her they were going to rob the place, she saw Buck and Frank go up the side of the building to where the back door was located. She further testified that she heard loud banging and went to the back where she saw Buck and Frank. Buck was wearing a black ski mask. According to Sharronda, Buck had a green money bag and what appeared to be a gun. Sharronda also testified that Appellant told her "they killed him," and "David is dead." She testified that Appellant's hands were trembling as he told her. According to Sharronda, while they were waiting for police to arrive, Appellant told her Sharronda further testified that Torian, Appellant's brother, went out to talk to Buck that night before the robbery, and that when Torian returned, he, too, said Buck was "going to rob the place," and that Buck was wondering if anyone would snitch on him.
Tim Dillard testified that he arrived at the restaurant in a car with Frank. He then testified that after they arrived, Appellant came out of the restaurant to talk to Buck on at least two occasions. Tim could not hear their conversation because they were speaking outside and he was inside the car. Tim testified that when Buck got in the car after speaking with Appellant, Buck told him, "it was clear to go through the back door." Tim also testified that Buck told him Appellant was the one who told him it was clear. Tim testified that Buck then went in the back door, followed a couple of minutes later by Frank. Tim further testified that when Frank returned to the car, he was hostile and said that "Buck shot that man." Tim testified that they were about to leave when Buck came out with the bank bag and got in the car. Tim also testified that he was with Buck and Frank later when they divided the money between them.
Dillard further testified that Appellant threatened him at school, "Saying he was going to handle me because I snitched along with some other couple of people that we snitched, and we told on his brother."
Rodney Barnes, Frank's brother, testified that he was at the Western Sizzlin when it was robbed. According to his testimony, he arrived with Buck, Nakia, and Tim in Appellant's car. Rodney testified that after they arrived, Torian came out first and spoke with Buck and that Appellant came out soon thereafter. Rodney further testified that Torian tried to convince Buck not to rob the restaurant and that Buck calmed down, but after Appellant came out and spoke to Buck, Buck was "all hyped then." According to Rodney, Appellant talked to Buck about a back. door. Rodney also testified that Buck said that he was going to rob this Western Sizzlin because he knew the manager was not armed. Again, according to Rodney's testimony, Appellant was saying to Buck, Rodney also testified that Appellant told him after the robbery, "Don't say nothing." Rodney further testified that Appellant got money from Buck that came from Western Sizzlin.
Nakia testified that she was Frank's girlfriend. She further testified that she was present in Frank's car on the night of the robbery. At one point she testified that she was in the car with Tim Dillard, too. Nakia testified that she saw Appellant come out of the restaurant on two occasions that night to speak with Buck and Frank. She also testified that she never saw Appellant motioning to Buck.
Appellant also testified. He denied any involvement in the robbery and murder. Rather, he testified that he saw his brothel. Buck drive up, and that he went out to tell him he would be finished soon, assuming his brother Buck had come to pick him up. He further testified that his brother Torian went out to speak with Buck, and that when Torian returned, it was apparent he was upset. Appellant then testified that Torian told him Buck was thinking about robbing the restaurant. According to Appellant, he then went back out to Buck and tried to talk him out of robbing the restaurant, telling him to go home. Appellant testified he told Sharronda that Buck had threatened to rob the place.
Appellant denied seeing Buck or Frank inside the restaurant. He testified that he was cleaning up when he heard two loud noises. Appellant then testified that he helped look for the victim and was there when the victim's body was discovered and the police were called. Appellant further testified that after they were all released by the police that night, he saw his brother who asked if the victim were dead. Appellant admitted lying to the police but attributed it to protecting his brother.
Dr. Stephen Erickson, an associate medical examiner at the Arkansas State...
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