Gillie v. State

• Decision Date: 29 April 1991
• Docket Number: No. CR,CR
• Citation: 305 Ark. 296,808 S.W.2d 320
• Parties: Clarence GILLIE, Appellant, v. STATE of Arkansas, Appellee. 90-259.
• Court: Arkansas Supreme Court

Page 320

808 S.W.2d 320

305 Ark. 296

Clarence GILLIE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-259.

Supreme Court of Arkansas.

April 29, 1991.

[305 Ark. 299] Thomas G. Montgomery, West Memphis, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

On March 28, 1990, the appellant, Clarence Gillie, was convicted of capital murder and aggravated robbery and sentenced as an habitual offender, respectively, to life without parole and 50 years in the Arkansas Department of Correction, the terms to be served consecutively.

Gillie asserts ten points of error on appeal, none of which have merit, and we affirm.

INSUFFICIENT EVIDENCE

We will initially address Gillie's point of error alleging that the evidence was insufficient to sustain a conviction for capital murder.

The underlying felony for Gillie's conviction of capital murder was robbery. Arkansas Code Ann. § 5-10-101(a)(1) (Supp.1989) addresses the offense and provides in pertinent part as follows:

(a) A person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit ... robbery ... and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ...

Gillie contends that there is no independent proof to indicate the underlying offense of robbery without resorting to speculation and conjecture.

To the contrary, the facts in this case show that on October 29, 1987, Wayne and Clovis Rogers, brothers, returned from Southland Greyhound Park to their room at the Twentieth Century Motel in West Memphis, Arkansas. Wayne testified that, while he was undressing and watching the evening news at approximately 10:05 p.m., there was a rapping at the door. Clovis went to the door and asked, "Who was it?" Wayne heard some mumbling, and Clovis unlatched the door. At that time, the person at the door said, "Open the door," at about the same time that he kicked in the door. Wayne saw a man at the door, and he jumped up and said, "Get out of here," as he realized that the man was breaking in on them. Wayne headed for the door, and the man fired two shots through the door opening and hit Clovis in the abdomen. Clovis subsequently died after 30 days in the hospital. Wayne made an in-court identification of Gillie as the man who had shot his brother.

Additionally, Thomas Gallagher testified that, at approximately 11:00 p.m. on the same evening of October 29, 1987, he was robbed at gunpoint in his room at the Holiday Inn Motel in West Memphis, Arkansas, of a scuba watch and college ring by a man, who he later identified in court as Gillie, and a woman. During the course of the robbery, the motel manager and security guard were brought into Mr. Gallagher's room, and they also identified Gillie as the robber in in-court identifications.

Further, Mr. Gallagher testified that the watch discovered upon Gillie upon his arrest was identical to the watch taken from him in the robbery. Most importantly, slugs and shell casings recovered from the first crime scene and a live round of ammunition found at the second crime scene were traced by means of expert testimony to a .45 caliber pistol that was also taken from Gillie upon his arrest in the State of Mississippi.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. On review, it is only necessary to ascertain that evidence which is most favorable to the appellee and, if there is substantial evidence to support the verdict, the finding must be affirmed. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986) (citing Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984)). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Trotter v. State, supra (citing Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984)).

The intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. Trotter v. State, supra. Additionally, A.R.E. 404(b) provides that "[e]vidence 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 ... intent, ... plan, ... identity...."

Proof of the aggravated burglary was clearly admissible as being relevant to prove both Gillie's intent and plan, as well as his identity, in the commission of the first incident, although we have already shown that the circumstantial evidence was amply sufficient to connect Gillie with the first incident. See Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Reference to the aggravated burglary was also allowable because it was so intertwined factually with the case before us that exclusion of any reference to it would have been confusing to the jury or would have unnecessarily hampered the State's proof of the charged crime. Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985).

Given the nature and sequence of events in this case, it is logical to infer Gillie's intent to rob the Rogers brothers at gunpoint in their hotel room from his actual commission of aggravated robbery of Mr. Gallagher in his hotel room within an hour of the first crime. Wayne Rogers identified Gillie as the man who attempted to

force his way into the hotel room in which he and his brother, Clovis, were staying and testified that Gillie was armed with a .45 caliber pistol and fatally wounded Clovis when the latter resisted Gillie's entry; Gillie was also identified as the man who robbed Mr. Gallagher at another hotel at gunpoint within an hour of the first occurrence involving the Rogerses; and ballistics evidence connected the .45 caliber pistol found on Gillie at the time of arrest to both of the crime scenes. Entwining the facts of the two incidents, we find that there is substantial evidence to support the verdict.

SPEEDY TRIAL

Gillie also argues that he was denied a speedy trial on the basis that he was not brought to trial within the twelve-month period provided by Ark.R.Crim.P. 28.1(c), as follows:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, ... shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Arkansas R.Crim.P. 28.2 addresses when time commences to run and provides in pertinent part as follows:

The time for trial shall commence running, without demand by the defendant, from the following dates:

(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;

* * * * * *

Arkansas R.Crim.P. 28.3 addresses excluded periods and provides in pertinent part as follows:

The following periods shall be excluded in computing the time for trial:

* * * * * *

(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

In this case, Gillie was arrested in the State of Mississippi for an unrelated charge on November 23, 1987. The Governor of Mississippi signed Gillie's extradition order on January 16, 1989, and Gillie was returned to the State of Arkansas in January 1990. Gillie was subsequently tried in the Crittendon County Circuit Court on March 26, 1990. As a result, Gillie submits that he was available for trial in this state upon the signing of his extradition order, the delay in his being brought to trial is not excluded by the rules, and he is entitled to a complete prosecutorial bar.

However, we have stated in Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981) (citing State v. Davidson, 254 Ark. 172, 492 S.W.2d 246 (1973)), that an accused in prison in another state, for a different crime, must affirmatively request trial in order to activate the speedy trial rule. Gillie did not do so here, and his right to a speedy trial did not begin to run until his actual return to this state. Gillie's trial within three months of his return to Arkansas complies with his right to a speedy trial.

STATE'S FILING OF CHARGE ON DAY OF TRIAL

Gillie contends that the trial court erred by permitting the state to file the charge of aggravated robbery against him on the day of trial. However, his reliance on Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982), is misplaced.

In Harmon, we stated that it was reversible error for the trial court to permit the prosecutor, on the first day of trial, to Here, the initial information that the State filed against Gillie was "Capital Murder ... while attempting or attempting to commit the felony crime of Robbery...." On the day of trial, the State also charged Gillie with aggravated robbery with a firearm involving the second incident.

amend the charge of capital murder committed during the course of kidnapping to also include capital murder committed during the course of robbery in the absence of any notice to the...