Hood v. State

• Citation: 329 Ark. 21,947 S.W.2d 328
• Decision Date: 09 June 1997
• Docket Number: No. CR,CR
• Parties: Marcus HOOD, Appellant, v. STATE of Arkansas, Appellee. 96-103.
• Court: Supreme Court of Arkansas

Page 328

947 S.W.2d 328

329 Ark. 21

Marcus HOOD, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-103.

Supreme Court of Arkansas.

June 9, 1997.

Michael D. Ray, Crossett, for Appellant.

Winston Bryant, Attorney General, Todd L. Newton, Assistant Attorney General, Little Rock, for Appellee.

IMBER, Justice.

After a jury trial, the appellant was convicted of aggravated robbery, and sentenced to fifty years' imprisonment. The appellant raises four points for reversal. We affirm.

On January 4, 1994, Hamburg police officer Danny Ray Smith received a call concerning an alleged armed robbery that took place at a service station. Officer Smith found that one of the gas station's proprietors, Shorty Williamson, had been shot. Another man at the scene, Leroy Harris, provided Officer Smith with a description of a vehicle at the scene, "a small new model, new looking model green car with heavy dark-tinted windows."

Leroy Harris had gone to the Williamson service station to get some gas. While walking inside to pay, he saw a person walking out of the station whom he later identified as Cedric Dunn. While inside, Harris saw Williamson bent over. Harris then went back outside and noticed a small, green car with tinted windows parked at the back of the station. The car subsequently left and headed south. Harris did not see who was in the car, nor did he see Dunn actually enter the car.

At trial, Hood's friend, David Haynes, recalled that shortly before January 4, 1994, Hood went along with him to a field to shoot a chrome .357 Smith & Wesson, with a black, rubber-grip handle. After Haynes finished firing the gun, he said that he left it in Hood's car, which he described as a small "light green-looking Honda." Haynes did not see Hood again, but found out the next day that Hood was in jail. On cross examination, Haynes explained that he put the gun under the car seat while Hood was outside of the car, and that he did not know if Hood saw him put the gun under the seat. Haynes likewise never told Hood the gun was under the seat.

Cedric Dunn pled guilty to aggravated robbery and theft of property in relation to the Shorty Williamson shooting, and was sentenced to twenty years. Hood was married to Dunn's aunt, and the two had known each other for eight or nine months prior to the robbery. Dunn testified that Hood came to him and "said we was going to go and rob Mr. Williamson." He said that he rode with Hood, who was driving his aunt's car, to Shorty Williamson's gas station. Dunn testified that Hood parked the car and followed Dunn into the gas station, but then Hood "seen somebody and left." According to Dunn, he pointed a gun at Williamson, who in turn struck at the gun, causing it to discharge. Williamson fell to the floor, and Dunn took some money from Williamson's pocket and ran. Dunn further testified that the gun was a "chrome, black handle .357," with a rubber handle, that he obtained from Hood. Hood had told Dunn that he was holding the gun for a friend. After the shooting, Dunn said that he went back to Hood's car and Hood drove him back to his home in Wilmot. While they were leaving, Dunn saw Leroy Harris pulling into the gas station. Dunn added that he gave Hood the money and the gun, and that Hood said he would hide the gun and they would split up the money later.

Joe Tullos was a captain with the Ashley County Sheriff's Reserve Department. On January 4, 1994, he received a radio dispatch about a "teal-green small import" that was involved in an armed robbery in Hamburg. That morning, Tullos encountered a vehicle matching the description about a mile and a half east of Wilmot. He observed the vehicle turn into the Wilmot city dump off of Highway 52. He waited for about three minutes, and then saw the vehicle pull out of the dump and continue down the highway. After following the vehicle for three miles, he pulled the vehicle over. He then arrested Hood, the only occupant of the vehicle. After Wilmot chief of police Glen Lawson arrived on the scene and advised Hood of his Miranda rights, Hood made the following statement: "Man, I never got out of the car over there."

Officers William Setterman and David Oliver aided in the investigation of the robbery. During an interrogation, Hood volunteered to take them to the sight where he disposed of the gun. Hood took Setterman, along with Hamburg chief of police David Sims, to the dumpsters east of Wilmot, off of a gravel road. In a grassy area Sims recovered a chrome .357 revolver. The revolver contained one spent shell casing with five live rounds.

Hood was charged with theft of property and aggravated robbery. The trial court granted Hood's directed verdict motion with respect to the theft of property charge. However, the jury ultimately convicted Hood for aggravated robbery, and sentenced him to fifty years' imprisonment.

1. Sufficiency of the evidence.

Hood challenges the sufficiency of the evidence to support his conviction for aggravated robbery. The State does not address the merits of his argument, but responds that the issue is not preserved for appellate review because Hood failed to abstract the trial court's ruling on the renewal of his directed verdict motion. We agree. At the close of the State's case, Hood's abstract shows that he made a specific directed-verdict motion on the aggravated robbery charge alleging that there was insufficient evidence of corroboration. The abstract also reflects that the trial court found that there was sufficient evidence of corroboration to give the case to the jury. Following the close of all evidence, Hood made a general renewal of "all earlier motions," and the abstract demonstrates that closing arguments were then made.

While Hood's abstract contains his general renewal of the earlier, specific directed-verdict motion, see Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995) (renewed directed-verdict motion "I would renew all previous motions I have made" at close of evidence sufficient for appellate review), it fatally omits the trial court's ruling on this motion. This court has often emphasized that the record on appeal is limited to that which is properly abstracted. See, e.g. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Without the trial court's ruling, we have no basis for a decision, and are precluded from a review of this point. See Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992).

2. Sufficiency of the transcript.

Hood argues that the record in the case is inadequate for purposes of appellate review. Hood originally filed a motion to supplement the transcript, arguing that the record omitted a February 7, 1995, suppression hearing and a bench conference at trial regarding Hood's objection to the State's question to Setterman, "[W]here you or did you recover anything of evidentiary value in the investigation of Shorty Williamson's Service Station in Hamburg?" See Hood v. State, 324 Ark. 457, 920 S.W.2d 853 (1996) (per curiam). We granted the motion to supplement and remanded to reconstruct and settle the record. Id. We noted the resolvable nature of the omissions involved, and observed that even if a transcript of the proceedings could not be made, the record could nonetheless be settled pursuant to Ark.R.App.P.--Civ. 6. Id.

On June 6, 1996, the trial court held a hearing to reconstruct the record. Apparently, the court reporter who made the original record of the case, Val Dixon-Sims, failed to produce certain tapes, thus making it impossible to transcribe certain portions of pretrial hearings and a bench conference. When the initial transcript was received from Dixon-Sims, it contained none of the pretrial hearings. On remand, court reporter Margaret Norton was able to use existing tapes to prepare a partial transcript of a majority of the pretrial hearings, but there were no tapes at all of a particular suppression hearing, and the audio quality of the bench conference was inadequate.

Defense counsel explained at the June 6, 1996, hearing that the bench conference concerned the trial court's previous failure to rule on his motion to suppress. Because the trial court had not yet issued a formal ruling on the motion, defense counsel was concerned as to whether Setterman would be able to testify to the circumstances surrounding the recovery of the gun, given that it was the fruit of an allegedly coerced statement. Defense counsel further opined that "the Court must have overruled my objection ... because the witness then went ahead and began testifying to where they went and what they got and what they did. That appears to me to be what happened at that bench conference." The prosecutor likewise stipulated to this version of events at the bench conference.

On June 24, 1996, a supplemental record was filed with this court containing a transcription of multiple pretrial hearings along with the June 6, 1996, reconstruction hearing. On October 21, 1996, the State filed a motion to remand with this court arguing that while the record had been settled with respect to the June 20, 1995, bench conference, it had not been settled with respect to the suppression hearing testimony of Officers Oliver and Tommy Breedlove. We granted the motion, and the trial court held another reconstruction hearing on December 4, 1996. At this hearing, defense counsel explained that tape-recorded interviews were taken from Hood on January 4, 5, and 6, 1994. According to defense counsel's recollection, the tapes of the interviews showed that Hood was ill at the time of the statements, as indicated by Hood's constant coughing on the tapes. Defense counsel also recalled that the police used profanity, derogatory statements, and manipulation to obtain the statements.

The remainder of the December 4, 1996, hearing focused on the reconstruction of Breedlove's and Oliver's testimony regarding their interview with Hood on January 4, 1994. This testimony...