Jones v. State, CR

• Decision Date: 28 January 1999
• Docket Number: No. CR,CR
• Citation: 984 S.W.2d 432,336 Ark. 191
• Parties: Brodrick Resean JONES, Appellant, v. STATE of Arkansas, Appellee, 98-309.
• Court: Arkansas Supreme Court

Page 432

984 S.W.2d 432

336 Ark. 191

Brodrick Resean JONES, Appellant, v. STATE of Arkansas, Appellee,

No. CR 98-309.

Supreme Court of Arkansas.

Jan. 28, 1999.

Jeff Rosenzweig, Little Rock, for appellant.

Winston Bryant, Atty. Gen., Kelly K. Hill, Deputy Atty. Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

The appellant, Brodrick Resean Jones, was convicted of capital murder and criminal attempt to commit aggravated robbery and sentenced to life in prison without parole. He appeals his judgment of conviction on five grounds. We affirm.

On the evening of February 11, 1996, Jones and his friend, Darrell Haire, went out to "do some drinking and riding" in Little Rock. They stopped at a Stax Store in southwest Little Rock for gasoline and a bag of chips and at two other gasoline stations, including a Texaco station, ostensibly to buy beer. Next, they drove east on Cantrell Road and saw the car of a friend, Moses Waiters, parked at the Subway sandwich shop. Jones testified that he asked Haire to stop at Subway so he could buy some marijuana from Waiters. Waiters was not working at Subway, but his girlfriend, Letetia Rummel, was. At Jones's request, Rummel called Waiters, and Jones spoke with him about doing an "inside job" where the participants would steal money from Subway. Waiters testified that he told Jones not to commit the theft because it was not worth it. At some point, Haire joined Jones and Rummel inside the Subway establishment and put his gun to Rummel's head. The last thing that Waiters heard on the phone was Rummel telling him: "There's a guy standing here. He has a gun to my head." Haire, according to Jones, shot her, and she died from a contact gunshot wound to the head. Jones testified to witnessing the shooting but insisted that he had no plans to rob the Subway and that he did not have any idea that Haire would kill Rummel.

Jones and Haire left together, and Jones spent the night at the home of his ex-wife, Cynthia Polk. The next day he turned himself in when he heard that Little Rock police officers were looking for him. He stood trial in August, 1997, and was convicted of capital felony murder and criminal attempt to commit aggravated robbery. He was sentenced to life imprisonment without parole for the murder and fifty years for the aggravated robbery attempt, to be served concurrently. ¹

I. Sufficiency of Evidence

Jones argues that there was insufficient evidence to convict him for criminal attempt to commit aggravated robbery and because that is an essential element of the capital felony murder charge, his conviction must be reversed. For his second sufficiency point, he claims that the evidence was insufficient to prove that he aided or abetted in the commission of the homicidal act.

Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before other points are raised. See 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. See 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. 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. See id.

A person commits robbery if "with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Ark.Code Ann. § 5-12-102 (Repl.1997). For aggravated robbery, a person must be: (1) armed with a deadly weapon or represent by word or conduct that he is so armed; or (2) inflict or attempt to inflict death or serious physical injury upon another person. See Ark.Code Ann. § 5-12-103 (Repl.1997). To be guilty of an attempted felony, a person must (1) purposefully engage in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or (2) purposefully engage in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense, whether or not the attendant circumstances are as he believes them to be. See Ark.Code Ann. 5-3-201 (Repl.1997). A person's conduct is not a substantial step unless it is strongly corroborative of the person's criminal purpose. See id.

Viewing the evidence in the light most favorable to the State, there was sufficient evidence to convict Jones of the underlying felony of attempted aggravated robbery. First, there is evidence that Jones and Haire surveilled several places to rob before finally settling on the Subway shop. Janice Johnson, the clerk at the Texaco station, testified that Jones came into her station about 10:40 p.m. on February 11, 1996, and asked for beer. She explained that she could not sell beer to him because it was Sunday. She became nervous because Jones had his hands in his pockets and was moving his hands and looking around and acting like he was in a hurry. She went to the back of the station and pretended that her manager was there. When she returned, she told Jones that the manager refused to sell him beer and added, "You're not going to get out of here. There's cameras everywhere." When Haire came into the store, Johnson testified that Jones told him, "There's nothing here for us. Let's go." The two whispered to each other and left.

There is also Jones's own testimony to the investigating Little Rock police detective, Keith Nicholas, and to Moses Waiters. According to both men, Jones asked Waiters about an "inside job" at Subway. Waiters testified that he told him not to try anything, to which Jones responded, "We're not going to hurt her. We just want the money." The plural "we" more than indicates that Jones was working with Haire and that he intended to commit robbery. Jones also told Waiters that he had already driven around the Subway outlet and there were not any police officers in sight. Waiters then heard a struggle over the telephone after which Letetia Rummel said another guy was holding a gun to her head. The victim was shot point-blank in the head. There was also the testimony of Cynthia Polk that Jones attempted to disguise himself the day after the crime and that he had told her Haire had just shot someone.

We conclude that there was sufficient evidence that Jones intended to rob the Subway shop and that Rummel was killed in furtherance of that plan. We further conclude that the prosecution did not have to prove that Jones aided in the murder itself for a felony-murder conviction. That he did not participate in the murder was an affirmative defense that Jones could and did raise under Ark.Code Ann. § 5-10-101(b) (Repl.1997). We discuss this point under the next issue.

II. Shifting Burden of Proof

Jones first urges this court to reconsider its prior cases and hold that Ark.Code Ann. § 5-10-101(b) (Repl.1997), is violative of the Due Process Clause because it shifts the State's burden of proving every element of the offense beyond a reasonable doubt to the defendant. Section 5-10-101(b) provides:

It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.

Section 5-10-101(a)(1) is the capital felony murder statute, and it provides for liability where a defendant, acting with another, commits or attempts to commit robbery, and in the course of and in furtherance of that felony, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

In Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983), cert. denied, 465 U.S. 1105, 104 S.Ct. 1606, 80 L.Ed.2d 135 (1984), this court was presented with this precise issue of shifting the burden of proof. We held that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all the elements of the offense charged but that it does not require the prosecution to prove the nonexistence of all affirmative defenses. In holding as we did, we emphasized that none of the elements of the § 5-10-101(b) affirmative defense, that is, that the defendant was not the only participant in the murder, did not commit the homicidal act, and did not in any way solicit, command, induce, procure, counsel, or aid in the homicide, were elements of the crime of capital felony murder. We further emphasized that the defendant did not have to prove the affirmative defense under § 5-10-101(b) until the prosecution had met its burden of proof on the charged offense. This court reiterated this holding in Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

Jones contends that this court should now reconsider the issue and overrule the Fairchild and Moss decisions in light of two United States Supreme Court cases. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, the Court framed the issue to be whether in a case where intent is an element of the crime charged, the jury instruction that the law presumes a person to intend the ordinary consequences of his voluntary acts violated the Fourteenth Amendment's requirement that the prosecution prove every element of a criminal offense beyond a reasonable doubt. The defendant in Sandstrom was charged with an intentional homicide...