Jefferson v. State

• Citation: 198 S.W.3d 527
• Decision Date: 18 November 2004
• Docket Number: No. CR 04-686.,CR 04-686.
• Parties: Marvin G. JEFFERSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

198 S.W.3d 527

Marvin G. JEFFERSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 04-686.

Supreme Court of Arkansas.

November 18, 2004.

COPYRIGHT MATERIAL OMITTED

Raymond Abramson, Clarendon, for appellant.

Mike Beebe, Att'y Gen., by Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

Appellant Marvin Gay Jefferson was convicted of attempted second-degree murder and aggravated robbery and sentenced to a total of thirteen years' imprisonment. Jefferson was initially charged with attempted capital murder and aggravated robbery, as were codefendants Ronald Foster and Tyrell Starr. Jefferson appealed his conviction to the court of appeals, which reversed on the ground that the circuit court erred in admitting into evidence the redacted statement of Jefferson's non-testifying codefendant. See Jefferson v. State, 86 Ark.App. 325, 185 S.W.3d 114 (2004). We granted the State's petition for review of this decision, pursuant to Ark. Sup.Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003). Jefferson raises two points on appeal for our consideration. He first argues that the circuit court erred in denying his motion for directed verdict. He also argues that the circuit court violated his Sixth Amendment right to confrontation, as set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny, by admitting into evidence the redacted statement of his non-testifying codefendant, Tyrell Starr, at their joint trial. We hold that the circuit court erred in admitting codefendant Starr's redacted statement. Accordingly, we reverse and remand for a new trial.

Facts

On the afternoon of March 20, 2002, in Holly Grove, Arkansas, William Robert Rawls, a bank's mail courier, was driving the bank van on a highway behind a Cadillac that bore no license plate. Rawls stated that the car's left turn signal was engaged, that the car slowed to a stop, and that he stopped the van behind it in order not to hit the car. Three people were riding in the Cadillac. According to Rawls, the front seat passenger in the Cadillac, wearing a ski mask, exited the car and shot at the van windshield four times. Rawls said that the shooter then approached the passenger side of the van and said, "Give me your money." Rawls told the shooter that he did not have any money. The shooter replied that he was going to kill Rawls and then took Rawls's bank bag and threw it on the ground.

When the shooter threw the bag to the ground, he told the man who had been riding in the back seat of the Cadillac to pick up the bag. The man complied by putting the bag in the Cadillac's back seat. The driver of the Cadillac never exited the vehicle. The two passengers re-entered the Cadillac and drove away. Rawls testified that neither the shooter nor the other passenger was wearing orange. He said that the driver never turned around, and that he could only see the back of the driver's head and shoulders.

Marvin Ensley, a man who lived near the location of the robbery, was listening to his police scanner at the time of the robbery. After hearing about the incident on his scanner, Ensley went to the area of the robbery. Ensley later told law enforcement officials that he had seen a black man wearing orange overalls walking along side the woods. Another man, Hal Bones, stated that on March 20, he gave a ride to Jefferson, who was wearing an orange suit. Bones reported that Jefferson told him that he had been hunting but had lost his gun in the water. Bones asked Jefferson if he wanted to go and look for the gun; Jefferson said that he did not. A ski mask was located by police about a half mile from the crime scene. DNA from saliva found on the mask was consistent with the DNA of Ronald Foster.

Jefferson was ultimately brought in for an interview with the police. In a statement given to a criminal investigator with the Arkansas State Police, Jefferson said that he was in the Cadillac at the time the crime occurred. However, he denied that he had any knowledge that the other two, one of whom he identified as Foster, were going to commit a robbery or that they had a gun. Jefferson claimed to be wearing bright orange at the time, and he said that "if I was going to do something like that[,] I would not have been wearing bright orange where everyone could see me."

Jefferson stated that after the crimes, Foster went through the bank bag and began to discard items from the car. Jefferson further stated that after Foster and Starr stopped the car, he exited the car, leaving the two behind. Jefferson said he was just in the wrong place at the wrong time.

Both Foster and Starr gave handwritten statements to the police. Starr implicated both Jefferson and Foster by name. Starr stated that he allowed Jefferson to drive his car that day and that Jefferson stopped the Cadillac in the roadway. Starr also stated that Foster was in the front passenger seat, put on a ski mask, and shot at the van. Starr claimed that Jefferson assisted Foster. Starr said that after the crime, he moved to the driver's seat to drive away, that Jefferson and Foster "jumped in" the car, and that Foster disposed of the bank bag and pieces of the gun.

Jefferson and Starr were tried together. Foster entered a guilty plea. Prior to trial, Jefferson filed a motion in limine to prevent the use of Starr's statement, arguing that pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), his Confrontation Rights under the Sixth Amendment would be violated by use of Starr's statement without the benefit of his testifying. The State retyped Starr's handwritten statement, changing both Foster's and Jefferson's names to "he," "they," or "some other guy," attempting to comply with the dictates of Bruton, supra, and Gray, supra. Jefferson's counsel contended that even with the changes to pronouns, the inference was prejudicial by indirectly referring to Jefferson. The State put Foster's name back into the statement where Foster was incriminated to avoid any confusion between Foster and Jefferson. Jefferson's counsel maintained that the statement was still violative of Jefferson's rights of confrontation, even with the addition of Foster's name. The circuit court disagreed and allowed the State to use Starr's modified statement, finding that the State's corrections complied with the requirements of Bruton and Gray.

At trial, Rawls testified as outlined above, and Barry Roy, a criminal investigator with the Arkansas State Police, recounted his investigation of the crimes and read into evidence Jefferson's statement and a modified version of codefendant Starr's statement. At the close of the State's case, Jefferson moved for a directed verdict, arguing that the State failed to prove that he had the premeditation or deliberation necessary for attempted capital murder or knowledge that any such offense was about to take place. As to the aggravated robbery, Jefferson argued that the prosecution failed to prove that he had the purpose to commit a theft or that he was an accomplice. The motions were denied.

The jury deliberated, finding Jefferson guilty of attempted second-degree murder and aggravated robbery. We now address Jefferson's arguments on appeal.

Sufficiency of the Evidence

A motion for directed verdict is a challenge to the sufficiency of the evidence. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). We will affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.

Jefferson contends that the circuit court erred in denying his motion for directed verdict as to the charge of attempted capital murder because the State failed to prove that he acted with premeditation and deliberation, that he took a substantial step in the course of conduct intended to culminate in the commission of capital murder, or that his conduct was strongly corroborative of his criminal purpose. Though charged with attempted capital murder, Jefferson was convicted of the lesser-included offense of attempted second-degree murder. Nevertheless, Jefferson moved the circuit court to direct a verdict solely on the greater offense of attempted capital murder.

We hold that Jefferson's argument concerning the sufficiency of the evidence as to his second-degree murder conviction is procedurally barred. A defendant, in making his motions for directed verdict, must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State's proof in his motion. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Since Jefferson failed to address the elements of attempted second-degree murder in his directed-verdict motion, we do not address this issue.

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