Cox v. State

• Decision Date: 22 April 1991
• Docket Number: No. CR,CR
• Citation: 808 S.W.2d 306,305 Ark. 244
• Parties: Radford COX, Sr. and Radford Cox, Jr., Appellants, v. STATE of Arkansas, Appellee. 90-264.
• Court: Arkansas Supreme Court

Page 306

808 S.W.2d 306

305 Ark. 244

Radford COX, Sr. and Radford Cox, Jr., Appellants, v. STATE of Arkansas, Appellee.

No. CR 90-264.

Supreme Court of Arkansas.

April 22, 1991.

Patricia A. Page, J.F. Atkinson, Jr., Mena, for appellants.

Sandy Moll, Asst. U.S. Atty., for appellee.

DUDLEY, Justice.

The appellants, Radford Cox, Sr. and Radford Cox, Jr., were jointly tried and convicted of the capital murder of Freddie Harrison. Both were sentenced to life in prison without parole. Together, they assert five points, and numerous sub-points, on appeal. We hold there is no reversible error and affirm the judgment of conviction. Because one of the points of appeal involves the sufficiency of the evidence, and another involves the denial of a request for a severance, it is necessary that we discuss the facts in detail.

Appellants Radford Cox, Sr. and Radford Cox, Jr., commonly known as Big Rad and Little Rad, attended the Independence Day celebration at the Clear Creek Bridge near Mena on July 4, 1989. Late in the day Little Rad, an adult, was setting off fireworks, when Freddie Harrison, a war veteran, said the fireworks made him nervous. He asked Little Rad to stop setting them off. Little Rad refused, and Harrison started to shove him around. Big Rad said, "Stop it, if you all don't stop it, somebody's gonna get hurt." Harrison knocked Little Rad to the ground. Big Rad reached into his nearby van, grabbed a .25 caliber pistol, and fired three to five shots at Harrison; hitting him in the chest and side. Harrison fell to the ground near a road.

Jonathan Cox, a bystander, went to Harrison and attempted to aid him, but Little Rad kicked him away. Harrison was still breathing at the time. Little Rad dragged Harrison from the road over into some brush about two car lengths away. He returned to the van and said, "It's not over with yet, we gotta finish it." Big Rad handed him the pistol. Little Rad then disappeared into the nearby brush where he had left Harrison. A witness heard three more shots. Little Rad reappeared and gave the pistol back to Big Rad. Harrison's body was later found by the police. He had been shot six times. Three of the bullet wounds were in his chest and side, and three more, which had been fired from only a few inches away, were in his head, with one of them being between the left eye and the left ear, another being to the left forehead, and the third being above the right ear. Subsequently, four of the bullets were removed from Harrison's body, and a firearms tool marks examiner found all four bullets had been fired from Big Rad's pistol.

Big Rad subsequently told Jessie Hooks that, "If it got out, he would be the same way Freddie [Harrison] was." Joann Cox, another eyewitness, said Big Rad told her to "Keep my fucking mouth shut or I would get the same thing." He told eyewitness Carl Duramus, "If I knew what was good for me, I'd keep my mouth shut, that I didn't know nothing about nothing."

Joann Cox quoted Little Rad as saying, "He shot Freddie Harrison in the head. He did not say in the head. He just said he shot him to get him out of his misery."

About eight months later Big Rad, while in the Scott County jail, solicited Arnold Shores, another inmate, to kill the state's main witness, Carl Duramus.

We can quickly dispose of the appellants' first argument, which involves the sufficiency of the evidence. Both contend there was no substantial evidence of premeditation and deliberation. Those elements of the crime may be inferred from circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent, and location of the wounds inflicted, the conduct of the accused and the like. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). Further, premeditation and deliberation in the act of murder can be formulated in the assailant's mind in an instant. They do not have to exist in the mind of the assailant for an appreciable length of time, but must exist when the assailant commits the act. Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972).

Here, Big Rad got a gun out of his van and fired four or five shots at the victim. Three of the shots hit his torso. He fell, mortally wounded. Little Rad prevented a bystander from aiding the victim and said, "It's not over yet, we gotta finish it." Big Rad handed the pistol to Little Rad who then fired three more rounds into the victim's head. It is hard to imagine any stronger direct evidence of a deliberate intent to kill.

Little Rad separately argues there was no direct evidence that he shot the victim. That bare statement is correct, but it does not entitle him to a reversal because the circumstantial evidence of Little Rad's guilt is so strong that it is inconsistent with any hypothesis other than guilt.

In another sub-point, both appellants contend that there was insufficient evidence to show which one of them caused the victim's death. Arkansas law defines causation for the purpose of determining criminal liability as follows:

Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.

Ark.Code Ann. § 5-2-205 (1987). Our law is well established that, where there are concurrent causes of death, conduct which hastens or contributes to a person's death is a cause of death. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); McClung v. State, 217 Ark. 291, 230 S.W.2d 34 (1950); Rogers v. State, 60 Ark. 76, 29 S.W. 894 (1894). See also, W.R. LaFave & A.W. Scott, 1 Substantive Criminal Law, § 3.12 (1986); R.M. Perkins & R.N. Boyce, Criminal Law, 783-4 (3d Ed.1982).

In the case at bar, the medical examiner who performed the autopsy on the victim testified, "Mr. Harrison was shot six times and he died as a result of these six wounds, which entered the brain, internal organs and caused death of internal bleeding." The eyewitnesses to the murder described the manner in which the killing occurred. The medical examiner's testimony, coupled with that of the eyewitnesses, was sufficient to prove that the victim died as a result of internal bleeding from the shots fired by the appellants. Thus, there was substantial evidence they caused the death of their victim.

In another point, the appellants argue that the trial court erred by refusing to grant their motion for a severance. Again, we can quickly dispose of the argument. A.R.Cr.P. Rule 22.3(b)(i) provides:

(b) The court, on application of the ... defendant other than under subsection (a), shall grant a severance of defendants:

(i) if before trial it is deemed necessary to protect a defendant's right to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of one (1) or more defendants.

We have held that the above rule gives the trial court discretion to grant or deny a severance, and the trial court's ruling will not be disturbed on appeal absent an abuse of that discretion. McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).

The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.

Id. at 638, 648 S.W.2d at 60.

In the present case, the appellants contend that their defenses were antagonistic since it could not be determined which bullets caused the death of the victim. However, as previously pointed out, the shots fired by both defendants contributed to, and were the cause of, the victim's death. The appellants' defenses were not antagonistic in this respect.

They further contend that their defenses were antagonistic because they were father and son. However, this argument is not convincing and is not supported by authority. We need not address it further. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Each appellant argues that the evidence against the other was stronger than against him, and accordingly, a severance should have been granted. Big Rad argues that the evidence of Little Rad dragging Harrison and shooting him at point blank range prejudiced Big Rad, who may have only acted in the heat of the moment, after his son had been attacked. The argument ignores that evidence that shows that Big Rad fired several shots into the torso of the victim from a range of a few feet, and that he gave his pistol to his son after his son had said he wanted to "finish the job."

Little Rad contends the evidence against him was only circumstantial, and therefore, a severance should have been granted. Although circumstantial, the evidence against him is as strong as that against his father. There is no reasonable conclusion to be drawn from the evidence except that Little Rad fired the shots into Harrison's head. Additionally, the testimony of Joann Cox showed that Little Rad admitted shooting the victim. Under the totality of the circumstances in this case, the trial court did not abuse its discretion in refusing to grant appellants separate trials.

Appellants next argue that the trial court erred in admitting the testimony of Arnold Shores. They contend that, pursuant to A.R.Cr.P. Rule 17.1(a)(i), the prosecutor failed to disclose the name and address of Arnold Shores. We hold that while Shores might have...