Cooper v. State

• Decision Date: 15 April 1996
• Docket Number: No. CR,CR
• Parties: James COOPER, Jr., Ulonzo Gordon and Jeremy Moten, Appellants, v. STATE of Arkansas, Appellee. 95-1113.
• Court: Arkansas Supreme Court

Page 205

919 S.W.2d 205

324 Ark. 135

James COOPER, Jr., Ulonzo Gordon and Jeremy Moten, Appellants, v. STATE of Arkansas, Appellee.

No. CR 95-1113.

Supreme Court of Arkansas.

April 15, 1996.

Paul J. Teufel, Martin E. Lilly, Kimberly D. Boling, Jonesboro, Alvin L. Simes, Donald A. Forrest, West Helena, for appellants.

J. Brent Standridge, Asst. Attorney Gen., Little Rock, for appellee.

NEWBERN, Justice.

James Cooper, Ulonzo Gordon, and Jeremy Moten were tried together and convicted of killing Otis Webster. Each was sentenced to life imprisonment without parole for capital murder. Ark.Code Ann. § 5-10-101(a)(4) (Repl.1993). Each of them has appealed. We affirm their convictions. Mr. Cooper and Mr. Gordon have several points of appeal each, and Mr. Moten has one. After stating facts the jury could have concluded from evidence produced by the State at the trial, we will address each appellant's points of appeal. Other facts will be stated as necessary in our discussion of each appellant's arguments.

On December 3, 1994, Otis Webster, the victim in this case, shot James Cooper 11 times. On January 28, 1995, Jeremy Moten shot and killed Otis Webster. On the latter date Rickey Lewis, Tyrone King, and Corey Sublett were seated in a car parked in a parking lot in a place referred to by witnesses as the "project area" in West Memphis. Tony Johnson drove up in a car in which Otis Webster was a passenger. Tony Johnson and Otis Webster then stood talking with Lewis, King, and Sublett when a third car arrived carrying Cooper, Gordon, and Moten. Moten and Gordon got out and drew pistols. They told Johnson to get out of the way. Shots were fired, and Moten then chased Webster, shot him once, swore at him, and then shot him three more times as he lay on the ground. Cooper drove away with Gordon as his passenger and then picked up Moten.

I. James Cooper

a. Sufficiency of the evidence

Mr. Cooper's defense was that he did not know a shooting would occur when he drove Gordon and Moten to the parking lot. He argues there was no evidence that he entertained any premeditation which is an element of capital murder as charged, so his motion for a directed verdict should have been granted. As the State points out in response, Cooper's liability for the crime is as an accomplice, Ark.Code Ann. § 5-2-403 (Repl.1993), and the evidence need only be sufficient to show he encouraged or aided in the commission of the crime. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).

A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 879 S.W.2d 409 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, and in determining whether substantial evidence exists, we review the evidence in the light most favorable to the appellee. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993).

Mr. Cooper drove to the scene of the crime with two men who exited his car and drew weapons. One or both of them fired at the victim who, according to an eye witness, was eventually killed by one of them. Cooper then fled the scene with one of the shootists and allowed the second to enter his car shortly thereafter. When the evidence tending to prove those facts is combined with the evidence that Mr. Cooper had a strong motive to injure or kill Mr. Webster we can hardly conclude the evidence is insufficient to support his conviction as an accomplice.

b. Severance

Mr. Cooper sought to have his trial severed from those of Mr. Gordon and Mr. Webster. The factors to be considered in deciding whether to grant a severance of the trial of one defendant from that of another are: (1) antagonistic defenses; (2) difficulty in segregating evidence; (3) lack of substantial evidence implicating one defendant except for the accusation of another; (4) deprivation by one defendant of another's peremptory challenges; (5) compulsion of testimony by one defendant if another chooses to testify; (6) disparity in criminal records; and (7) stronger circumstantial evidence against one defendant than against another. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Whether to grant the motion lies within the discretion of the Trial Court and a ruling will not be disturbed on appeal absent an abuse of that discretion. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); McDaniel v. State, supra.

Mr. Cooper argues his trial should have been severed because his defense was antagonistic to that of his codefendants, the evidence against them was stronger than against him, and the evidence could not successfully be segregated. We find no merit in those claims. As a matter of logic, there is no antagonism between Cooper's defense that he did not know what Gordon and Moten planned to do and their self-defense claim. Antagonistic defenses arise when each defendant asserts his innocence and accuses the other of committing the crime. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); McDaniel v. State, supra. That is not the case here. There is no reason the jury could not have believed both Cooper's claim of lack of knowledge and the self-defense claim of Gordon and Moten had it found their witnesses credible.

As mentioned above, the evidence of Mr. Cooper's participation as an accomplice was substantial. He has not demonstrated that, had he been tried separately, the evidence about the actions of Gordon and Moten would not have been admitted to prove Cooper's status as an accomplice. He thus has demonstrated no prejudice in having one jury hear it all. There was no abuse of discretion.

c. Jury selection

Mr. Cooper contends the State improperly exercised a peremptory challenge of African-American venire person Sharon Dunigan. Mr. Cooper objected on the ground that the reason was racial in nature and thus a violation of his rights as explained in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When the peremptory challenge to Ms. Dunigan occurred, two African-American jurors had been seated. The State had struck three caucasian venire members. In response to the objection, the prosecutor said Ms. Dunigan was struck because she would not look him in the eye when answering voir dire and, although she was a long-time resident of the neighborhood in which the killing occurred, she said she knew none of the persons involved.

Mr. Cooper's argument focuses on the State's explanation, but we need not evaluate it because the Trial Court's ruling, with which we agree, was that no prima facie case of discrimination had been presented. When a Batson objection is raised the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing the challenge was not based on race. Only if the defendant makes a prima facie case and the State fails to give a facially neutral reason for the challenge is a court required to conduct a sensitive inquiry. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire suggesting racial motive. Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a Batson ruling is whether a court's findings are clearly against the preponderance of the evidence. Sims v. State, supra.

The prosecution's use of a peremptory challenge to remove the only black prospective juror may establish a prima facie case, Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); however, one peremptory strike of a minority prospective juror, with no additional facts or context in which it can be evaluated, is not sufficient. Heard v. State, supra; See Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995); see also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant, Heard v. State, supra; Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), and we find nothing in the context of the challenge to Ms. Dunigan which would have required the State to explain or the Trial Court to have delved into the matter.

d. Suppression of Testimony

Officer Bill Durham investigated the incident in which Mr. Cooper was shot by Otis Webster. Officer Durham testified he spoke with Cooper while Cooper was in the hospital recovering from his wounds and advised him to come to the police station later to file a complaint but that Cooper had not done so.

Mr. Cooper claims that any testimony regarding the fact that he failed to sign an affidavit for an arrest warrant after the victim shot him was inadmissible. At trial he claimed that the evidence was hearsay because Detective Durham had not seen the shooting, and that the evidence was not relevant. On appeal he argues that the jury was allowed to hear speculative testimony that he did not sign the affidavit because he planned to kill the victim. He contends that was prejudicial and resulted in denial of a fair trial.

Mr. Cooper ignores the fact that the Trial Court...