Cox v State

• Decision Date: 28 June 2001
• Docket Number: 00-345
• Citation: 47 S.W.3d 244
• Parties: RICHARD COX, APPELLANT, VS. STATE OF ARKANSAS, APPELLEE.00-345 SUPREME COURT OF ARKANSAS Opinion Delivered
• Court: Arkansas Supreme Court

RICHARD COX, APPELLANT VS STATE OF ARKANSAS, APPELLEE

No. CR 00-345

SUPREME COURT OF ARKANSAS

Opinion Delivered

June 28, 2001

APPEAL FROM THE CROSS COUNTY CIRCUIT COURT, NO. CR 96-100, HON. HARVEY LEE YATES, JUDGE, AFFIRMED.

ROBERT L. BROWN, Associate Justice

The appellant, Richard Cox, was tried and convicted of capital murder resulting from the death of Holly Strickland.He was sentenced to life in prison without the possibility of parole.He appeals and raises five points: (1)the trial court erred in not granting his motion for directed verdict at trial; (2)the trial court erred in not suppressing his custodial statement; (3)the trial court erred in excluding from evidence statements by Kingrale Collins that Collins had committed the murder; (4)the trial court erred in not declaring a mistrial after allegedly improper comments and argument by the prosecuting attorney; and (5)the trial court erred in not requiring a racially neutral reason from the prosecuting attorney when the prosecutor struck a potential African-American juror.We hold that none of the points has merit, and we affirm.

The facts of this case are taken from the statement given by Cox to Wynne police officers and from various witnesses at his trial.In the early morning hours of May 18, 1996, Kingrale Collins, who was in his twenties, and Cox, who was age sixteen at the time, went to Collins's house in Wynne and got Collins's 12 gauge pump shotgun and shotgun shells.The handle of the shotgun was taped with gray tape.Cox carried the shotgun until the two young men crossed the railroad tracks when he handed it to Collins.Cox said that Collins told him he was "going to get some money" that was owed him.

Cox and Collins first stopped at a house trailer and knocked on the door.No one answered, and they left.According to Cox, Collins then stopped at two more residences by himself, a white house and an apartment complex, and knocked on the doors, while Cox watched from a distance.Two witnesses for the State, Charlotte Archer and Greg Wilson, confirmed that they had heard knocks on their doors during this time period.Ms. Archer testified that she looked through a window and saw two young black males standing at her door.She did not answer the door.Greg Wilson testified that at about 2:00 or 3:00 a.m. he heard someone beating on his door.He went to the door, and no one was there.Later, he heard shots and went out to his porch where he saw "two guys" running down the street with a shotgun.

According to Johnny Strickland, the husband of the murder victim, he was in the bathroom having just arrived at a friend's house with his wife at around 2:30 a.m.He heard shots, ran out to the living room, and found his wife on the floor in a pool of blood in front of the door.She showed no signs of life.Dr. Stephen Erickson, a forensic pathologist with the State Crime Lab, testified that she died from a single shotgun wound to the right arm, and right chest.

In Cox's statement to Wynne police officers, he denied going to the front door where Holly Strickland was killed but stated that he heard three shots and heard the victim scream.He admitted that his finger prints were on two of the loaded shells in the shotgun and on the trigger as well.He denied killing Holly Strickland, however, and was adamant that Collins had done it.He did admit to carrying and hiding the shotgun as he ran away from the crime scene with Collins.When asked what would have happened if the man in the trailer had opened his door, Cox answered: "I guess he would have shot him."¹He told interrogating police officers that Collins asked him to imitate the victim's scream, and when Cox did, Collins laughed.

At about 3:00 that same morning, Antonio Milam reported information about Collins's connection to the murder to the Wynne Police Department.A search warrant was issued for Collins's house where a shotgun and shells were found.The shotgun proved to be the murder weapon used in the Strickland slaying.On May 22, 1996, Cox was arrested and interrogated by Wynne police officers.First, he answered questions implicating himself in the crime.He then signed a written statement that summarized his activity on the night of the crime.Later, he moved to suppress those statements on the basis that they were not voluntarily given and his Miranda rights were not knowingly and intelligently waived.The circuit court denied that motion.He was subsequently charged with capital murder, and the death penalty was requested.He was convicted of capital murder, as already indicated, and sentenced to life in prison without parole after the State waived the death penalty.Collins, in a separate trial, was convicted of capital murder and sentenced to death.We affirmed Collins's conviction and death sentence.SeeCollins v. State, 338 Ark. 1, 991 S.W.2d 541(1999).

I.Sufficiency of the Evidence

For his first point of appeal, Cox contends that the trial court erred in failing to grant his motion for directed verdict.He maintains that there was no evidence presented that he fired the fatal shots.Indeed, he points to the fact that in his statement, which the prosecutor introduced as part of the State's case-in-chief, Cox said that Collins was the murderer.In addition, he urges that there was no proof that he acted with deliberation and premeditation.On the contrary, he claims that he was merely present at the crime scene without any indication that Collins would do what he did.

A motion for a directed verdict is a challenge to the sufficiency of the evidence.Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115(2000);Terrell v. State, 342 Ark. 208, 27 S.W.3d 423(2000).The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial.Ferguson v. State, supra;Terrell v. State, supra.Substantial evidence is evidence that is of sufficient certainty and precision that it compels a conclusion one way or another.Ferguson v. State, supra;see alsoBooker v. State, 335 Ark. 316, 984 S.W.2d 16(1999).On appeal, this court views the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it.Ferguson v. State, supra;Terrell v. State, supra.Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to other assignments of circuit court error.Dixon v. State, 327 Ark. 105, 937 S.W.2d 642(1997);Yocum v. State, 325 Ark. 180, 925 S.W.2d 385(1996).

The prosecution's theory of the case at Cox's trial was that he was an accomplice in the Strickland murder with Collins.Our Criminal Code defines an accomplice as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403(a)(Repl. 1997);see alsoAMCI 2d 401.Mere presence when the crime is being committed and when one does not have a legal duty to act does not make one an accomplice.SeeWilliams v. State, 329 Ark. 8, 946 S.W.2d 678(1997);Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845(1990);see alsoAMCI 2d 404.

We first note that the jury was instructed on the law of accomplice liability which included an instruction on mere presence.The jury obviously concluded that Cox was an accomplice with Collins in perpetrating the crime.We believe that the jury's verdict is supported by substantial evidence.Cox's fingerprints were on two of the shells loaded into the shotgun, and his fingerprint was on the trigger.By his own admission, he accompanied Collins to the murder scene and carried the shotgun part of the way on that journey.After the murder, he fled with Collins.He carried the shotgun while fleeing and tried to hide it on his person.He also accompanied Collins to the first residence which was a trailer.Moreover, the jury could have inferred from these facts that Cox did more in perpetrating the murder than simply assisting Collins.See, e.g., Thomas v. State, 330 Ark. 442, 954 S.W.2d 255(1997).We affirm the circuit court on this point.

II.Suppression of Statement

For his next point, Cox maintains that his statement to police offices should have been suppressed because it was not voluntarily given and because he did not knowingly and intelligently waive his Miranda rights.²We affirm the circuit court.

a. Voluntariness

First, with regard to whether Cox voluntarily admitted his participation in the crime, he underscores that he was only age sixteen at the time of the police interrogation and a ninth grade student with an I.Q. of 92.He says that he was arrested and handcuffed at about 10:00 p.m. on May 22, 1996, and that his mother was never notified before the police interrogation.In addition, he claims that he was the victim of false promises of leniency by the interrogating policeofficers.As an initial matter, he claims that Officer Roger Speer of the Wynne Police Department told him that he could help himself by telling the truth and that the prosecuting attorney would want know whether he cooperated.It was after this exchange, according to Cox, that he told his story.Furthermore, towards the end of the interrogation, Chief Lynn Rogers said to Cox that he would probably be out on bond the next day.³He claims that that was a false promise, and, as a result, his statement to the police officers was not only the result of coercion and intimidation but also due to deception.

Our court has set out the standards for reviewing the voluntariness of statements resulting from police...