Howell v. State, CR 01-349.

• Citation: 350 Ark. 552,89 S.W.3d 343
• Decision Date: 14 November 2002
• Docket Number: No. CR 01-349.,CR 01-349.
• Parties: Marlon Donte HOWELL v. STATE of Arkansas.
• Court: Supreme Court of Arkansas

89 S.W.3d 343

350 Ark. 552

Marlon Donte HOWELL v. STATE of Arkansas.

No. CR 01-349.

Supreme Court of Arkansas.

November 14, 2002.

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Linda Scribner, Bentonville, for appellant.

Mark Pryor, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

Appellant Marlon Donte Howell was found guilty of capital murder by a Hempstead County Circuit Court jury, and the trial court sentenced Howell to life imprisonment in the Arkansas Department of Correction. We affirm his conviction and sentence.

On April 29, 2000, Appellant Marlon Donte Howell was at a birthday party in Hope, Arkansas, where he got into an argument with Darryl Allen, Sr. After the altercation, Howell left the party. A short time later, Allen and two women were about to leave the party in Allen's van when an individual ran up to the window, shot, and killed Darryl Allen, Sr.

Witnesses in the house where the birthday party was being held stated that they heard a shot, came outside, and saw a man named "Donte," last name unknown, run past the house, but saw nothing in his hands. One woman seated in the van at the time of the shooting stated that the shooter ran in the opposite direction, away from the house.

Police officers were posted to watch the residences of all known "Dontes" from the area. Appellant Marlon Donte Howell was one of several "Dontes" that was being observed by the police. Howell was later arrested in the woods behind his house. He was taken to the police station and interviewed by detectives. Howell was read his Miranda rights from a written form and signed the form. Detectives did not record the first three interviews and only a portion of the fourth. At all interviews subsequent to the first, Howell was not read his rights again, but was told that he was still "under his rights." Howell did not have phone access or contact with anyone other than law enforcement. At the fourth interview, partially taped, Howell confessed to shooting Darryl Allen, Sr., and told detectives where the gun was located. Detectives later found the gun where Howell indicated.

Howell brings the following points on appeal: 1) sufficiency of the evidence; 2) whether there was probable cause to arrest Howell; and 3) whether Howell's custodial statement should have been suppressed.

Sufficiency of the Evidence

Howell, in his third point on appeal, contends that the trial court erred in denying his motion for directed verdict. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before other points are raised. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. Beavers, supra; see Jones v. State, supra; Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Beavers, supra; see Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder:; nor do we assess the credibility of the witnesses. Beavers, supra.

In the instant case, at the close of the State's case, Howell contended that the State had failed to demonstrate that he was an accomplice to the capital murder. This argument was based upon an inference drawn by defense counsel based upon some of the trial testimony that appeared to be in conflict as to which direction Howell ran after the victim was shot. This is a jury question about weight rather than one going to the sufficiency of the evidence, because the State did not allege that Howell acted with another in the commission of this offense. For the reasons explained below, Howell's argument is without merit.

The testimony at trial revealed that on April 29, 2000, Howell was at a party at a residence located at 700 North Graham, in Hope. During the party, an apparent argument occurred between Howell and the deceased, Darryl Allen, Sr. Howell left the party in a car with someone else. A short time later, Darryl Allen, Sr., and two women, Carolyn Rodgers and Trenice Pennington, got into a van to leave when the two women saw someone approaching the van. Neither woman recognized the individual, although Trenice Pennington testified that she knew Donte Howell. This individual then approached the van and shot Darryl Allen, Sr., while he was sitting in the driver's seat. Carolyn Rodgers testified that the shooter then ran away from the house, ran down the hill, and behind the north side of the nursing home. Trenice Pennington did not see which way the shooter ran. Carolyn Rodgers told the detectives that if she saw the shooter again, she would be able to identify him. She was shown a photo lineup, computer photos, and a physical lineup, and in none of these did she pick out Donte Howell as the shooter. She repeatedly advised detectives that Donte Howell did not look like the shooter and that the shooter was taller. The medical examiner's testimony would seem to confirm a tall suspect, as he testified that the bullet that killed Darryl Allen, Sr., traveled down and across into his skull as he was sitting in the driver's seat of the van.

Carolyn Rodgers was adamant that the shooter did not run beside the house. She testified at trial, with Howell sitting at defense table, that she has never seen the shooter again since that night. Rodgers testified that the shooter was wearing a black sweater and white hat. Trenice Pennington testified that she saw an individual approach the van, and he was wearing a black jacket, light jeans, and a white hat. She thought it was a friend of Darryl's wanting to talk and even asked, "Who is that?" He then approached the van and shot Darryl. Trenice also testified that she knew Donte Howell previously.

Lamario Hightower testified that he was inside the house, heard the shot, came outside, and saw a black male named Donte, wearing all black, run from the residence and run east on Avenue H, which is on the opposite side of the house. He said it was "Donte," but did not know his last name. He later identified the man he saw running as Donte Howell. He also testified that he did not see a gun in Donte's hands as he was running and that the defendant ran right by the edge of the porch. This testimony was completely contradictory to Carolyn Rodgers's testimony about the direction in which the shooter ran.

Sherrie Purifoy testified that she was in the house when she heard the shot, and she went to the door and saw Donte running toward the house from the direction of the van. She testified that she did not see anything in his hands.

Officer Rick Hunter testified that he took fingerprints from the driver's side window of the van and sent the prints to the crime lab for comparison. The prints neither matched those of Darryl Allen, Sr., nor Howell.

The police subsequently arrested Howell after he attempted to evade apprehension. Howell gave a statement admitting that he had gotten into an altercation with the victim, left the scene and returned on a bicycle. Howell told investigators he waited there until the victim came out of the house and got into his van, shot the victim, and fled on foot. Howell further told the police that he threw the gun used to shoot the victim — a .357 revolver — behind a business called Southwestern Frozen Foods. The police subsequently recovered the gun next to a ball cap matching the description of the one worn by Howell at the time of the shooting. Police also located a bicycle a short distance from the victim's residence that Howell said he used to get back to the victim's residence after leaving in a vehicle with another person a short time before.

There was testimony at trial that conflicted as to which direction the victim's assailant ran after firing a single shot into the van. This court has declared it well-settled that the credibility of witnesses is an issue for the fact-finder and not the reviewing court. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The jury may resolve questions of conflicting testimony and inconsistent evidence and choose to believe the State's account of the facts rather than the defendant's. Ross, supra. The testimony at trial of the witnesses to the shooting, as well as Howell's confession, was clearly adequate to satisfy the substantial-evidence requirement. Therefore, the trial court's ruling was correct, and Howell's argument fails.

Probable Cause to Arrest

Howell also appeals stating that the trial court erred in finding there was probable cause to arrest him and not suppressing the fruits of that arrest. Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). The degree of proof sufficient to sustain a conviction is not required for probable cause to arrest. Id. All presumptions are favorable to the trial court's ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Id.

However, mere suspicion is not enough to support a finding of probable cause to arrest. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986), citing Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, (1964). Probable cause to arrest without a warrant exists when facts and circumstances within the officers collective knowledge and of which they...