Jones v. State

• Decision Date: 23 February 1994
• Docket Number: No. CA,CA
• Citation: 871 S.W.2d 403,45 Ark.App. 28
• Parties: Joe Don JONES, Appellant, v. STATE of Arkansas, Appellee. CR 93-78.
• Court: Arkansas Court of Appeals

Page 403

871 S.W.2d 403

45 Ark.App. 28

Joe Don JONES, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 93-78.

Court of Appeals of Arkansas Division II.

Feb. 23, 1994.

La Jeana Jones, De Queen, for appellant.

Cathy Derden, Asst. Atty. Gen., Little Rock, for appellee.

PITTMAN, Judge.

Appellant, Joe Don Jones, appeals from his conviction at a jury trial of criminal conspiracy to commit capital murder, for which he was sentenced to fifteen years in the Arkansas Department of Correction. He contends that the trial court erred in denying his motion for a directed verdict; in denying his motion to suppress; in allowing the State to use a peremptory strike to excuse a black male from the jury; in admitting into evidence a beer can and a sponge; in allowing two expert witnesses to testify about the beer can and sponge; and in denying appellant's two motions for mistrial. We affirm.

We first consider appellant's argument that the trial court erred in denying his motion for a directed verdict of acquittal. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Shamlin v. State, 23 Ark.App. 39, 743 S.W.2d 1 (1988). On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and will affirm if the finding of guilt is supported by substantial evidence. Smith v. State, 34 Ark.App. 150, 806 S.W.2d 391 (1991). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without requiring resort to speculation or conjecture. Leach v. State, 38 Ark.App. 117, 831 S.W.2d 615 (1992).

Appellant is a former DeQueen, Arkansas, police officer. He resigned in 1991. At the time of his alleged crime, Tim Litchford was a police officer with the same department. Officer Litchford testified that, while they worked together, he and appellant had conversations about the lax security at Lewis Food Center and how easy it would be to kill and rob the owner as he left the store at night. Litchford testified that he received a phone call from appellant on February 8, 1992. According to Litchford, appellant asked him to recall their prior discussions about robbing the Lewis Food Center and stated, "Well, I am fixing to do it." When Litchford asked appellant if he were serious, appellant replied, "You're God-damned right I'm serious." Appellant stated that he had obtained a .22 rifle but needed a scope for it. Litchford agreed to try to find a scope and to meet with appellant the following day. Litchford then reported his conversation with appellant to his police chief, who in turn contacted the Arkansas State Police.

On February 10, 1992, Officer Litchford, wired with a body microphone, went to appellant's apartment. They discussed how the store owner would be killed, how to dispose of the body, and whether the crime should be committed on a week night or a Saturday night. Officer Litchford again agreed to try to find a rifle scope, and appellant agreed to wait at least two days while Litchford sought it. They also discussed how the planned crime was a two-man job, how they would mount the scope on the rifle, how much money they thought they would get, and how they would have to burn any checks that were taken during the robbery.

On February 12, 1992, Officer Litchford returned to appellant's apartment with a rifle scope. Appellant opened the door, Litchford handed the scope to him, and appellant took it. At that point, appellant and his girlfriend, Donna Bobb, were arrested, and appellant's apartment was searched pursuant to a warrant.

A person commits capital murder if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark.Code Ann. § 5-10-101(a)(4) (Supp.1991).

A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:

(1) He agrees with another person or other persons:

(A) That one (1) or more of them will engage in conduct that constitutes that offense; or

(B) That he will aid in the planning or commission of that criminal offense; and

(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.

Ark.Code Ann. § 5-3-401 (1987). Under this section, the State was required to prove that there was an agreement by the parties to commit the crime and that one of the conspirators did at least a minimal act in furtherance of that agreement. Lee v. State, 27 Ark.App. 198, 770 S.W.2d 148 (1989); Guinn v. State, 23 Ark.App. 5, 740 S.W.2d 148 (1987). It is well settled that a conspiracy may be proved by circumstances and the inferences to be drawn from the course of conduct of the alleged conspirators. Lee v. State, supra; Shamlin v. State, 23 Ark.App. 39, 743 S.W.2d 1 (1988). Furthermore, it is not a defense to a prosecution for conspiracy that the person with whom the defendant conspires is immune to prosecution or has feigned agreement. Ark.Code Ann. § 5-3-103(b)(2) (1987); Guinn v. State, supra.

From our review of the record, we cannot conclude that appellant's conviction for conspiracy to commit capital murder is not supported by substantial evidence. While the agreement between appellant and Officer Litchford may not have been expressly stated in so many words, the substance of their conversation and the inferences to be drawn therefrom were sufficient to demonstrate an agreement between them to kill and rob another person. The fact that Officer Litchford stated on cross-examination that he had no real intention of actually carrying out the murder provides appellant no defense. Ark.Code Ann. § 5-3-103(b)(2) and Commentary thereto; Guinn v. State, supra. And Officer Litchford's procurement of a rifle scope as requested by appellant and appellant's acceptance of it is sufficient proof of an overt act in furtherance of their agreement.

Appellant next contends that the trial court erred in denying his motion to suppress evidence obtained from his apartment during a search pursuant to a warrant. He contends that, because it mistakenly listed his apartment as "4A" instead of "4B," the warrant failed to describe his apartment with sufficient particularity. Under the circumstances of this case, we find no error.

The Fourth Amendment to the United States Constitution provides in pertinent part that no search warrants shall issue except those "particularly describing the place to be searched." Likewise, Rule 13.2 of the Arkansas Rules of Criminal Procedure provides that all warrants shall describe with particularity the location and designation of the places to be searched. The requirement of particularity is to avoid the risk of the wrong property being searched or seized. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).

The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.

Pike v. State, 30 Ark.App. 107, 110, 783 S.W.2d 70, 72 (1990) (quoting Lyons v. Robinson, 783 F.2d 737 (8th Cir.1985) ). Search warrants should not be subjected to a hypercritical view in determining whether they meet constitutional requirements, and the sufficiency of the description to permit identification of the premises with certainty by appropriate effort and inquiry must be decided in light of the particular facts and circumstances of each case. Perez v. State, 249 Ark. 1111, 463 S.W.2d 394 (1971); Pike v. State, supra.

Here, appellant lived in a building made up of four apartments. The warrant incorrectly showed appellant's apartment as 4A when in fact he lived in apartment 4B. In all other respects, however, the warrant correctly described the place to be searched. It gave detailed directions as to how to get to the building, it correctly described the building, and it stated that the apartment to be searched was that of appellant, Joe Don Jones, and Donna Bobb. Moreover, Officer Litchford both applied for and participated in executing the warrant. He testified that the incorrect apartment number in the warrant was merely a typographical error. He clearly knew appellant and the particular apartment in which appellant lived. The same was true of several of the other police officers involved in executing the warrant, including one who actually lived in another apartment in the same building. Under these circumstances, we conclude that a mistaken search was unlikely and that the incorrect apartment number in the warrant was not a fatal defect. See Lyons v. Robinson, 783 F.2d 737 (8th Cir.1985); Pike v. State, supra.

Appellant, a white male, next argues that the trial court erred in allowing the State to use a peremptory strike to excuse a black male from the jury. We cannot agree.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude potential jurors of the defendant's race solely on account of their race. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Court held that a criminal defendant has standing to object to race-based peremptory challenges regardless of whether the defendant and the excluded jurors share the same race. The initial burden is on the defendant to establish a prima facie case of unconstitutional discrimination by showing facts and circumstances that give rise to an inference of discriminatory purpose in the exercise of peremptory challenges. If the defendant succeeds in making a prima facie case, the burden shifts to the State to show that the challenges were not based upon race. If ...