Keesee v. State
| Decision Date | 31 March 2022 |
| Docket Number | CR-20-581 |
| Citation | 641 S.W.3d 628,2022 Ark. 68 |
| Parties | Zachery KEESEE, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen.; and Christopher R. Warthen, Ass't Att'y Gen., for appellee.
Zachery Keesee was convicted of capital murder and sentenced to life imprisonment without parole. On appeal, he argues that the State submitted insufficient evidence to support his conviction and that the circuit court made many evidentiary rulings that require reversal. We find no reversible errors and affirm.
On an early May morning in 2018, Christopher Bynum and Andrew Morstain shot and killed Leo Panduro in a Days Inn motel room in Conway. Video-surveillance footage at the hotel showed that Morstain and Bynum entered Panduro's hotel room. Immediately after, gunfire ensued. The police found Panduro's body on the bed. He had been shot in the head, chest, arm, and wrist.
Surveillance footage showed that a gray BMW sedan and a U-Haul truck arrived at the hotel just before the murder and departed following it. The police recovered the BMW from a garage in Sherwood that Keesee's brother-in-law rented. Inside the BMW, police found Morstain's driver's license, clothes stained with Morstain's and Panduro's blood, body armor, a rifle, and a small box containing cocaine. The BMW was registered to Izikea, LLC, a company Keesee founded. Police also recovered the U-Haul truck from a parking lot near the garage in Sherwood. A man in California had rented the U-Haul truck and listed Keesee as a contact person on the rental agreement. Surveillance footage showed Keesee and Bynum walking together near the Sherwood garage a few hours after the murder.
Two days after the murder, police responded to America's Best Value Inn, another Conway hotel located near the Days Inn, because luggage had been left in a room. Panduro had rented that room as well. In the luggage police found a package containing one kilogram of methamphetamine; bank-transaction receipts; a Wells Fargo business debit card; shopping receipts; thousands of dollars in cash; MoneyGram receipts; and a journal containing notes written in Spanish.
After the murder, Keesee, Bynum, and Morstain fled to Mexico. A month later, Keesee tried to cross back into the United States, and border agents detained him. The State charged Keesee as an accomplice to premeditated-and-deliberated capital murder. The State later amended the information to include a charge for an alternative theory of accomplice to capital-felony murder based on an underlying felony violation of the Uniform Controlled Substances Act. The jury was given special interrogatories allowing them to decide independently whether Keesee was guilty of either or both of the alternative theories. The jury found Keesee guilty under both theories. Because the State waived the death penalty, Keesee was sentenced to life imprisonment.
Keesee was convicted of premeditated-and-deliberated capital murder, and the State based his criminal liability on his status as an accomplice. A person commits capital murder if "[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person." Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2013). Because it is difficult to prove intent by direct evidence, a jury may infer premeditation and deliberation from circumstantial evidence. Boyd v. State , 369 Ark. 259, 263, 253 S.W.3d 456, 459 (2007). When, as here, criminal liability is based on accomplice liability, we affirm a sufficiency challenge if the defendant acted as an accomplice in the commission of the offense. Cook v. State , 350 Ark. 398, 408, 86 S.W.3d 916, 922 (2002). A defendant is an accomplice if he renders the requisite aid or encouragement to the principal who committed the offense. Id. The appellant does not have to be at the murder scene to be guilty as a murder accomplice. Id.
In reviewing Keesee's sufficiency challenge, we view the evidence in the light most favorable to the State and will affirm if substantial evidence, direct or circumstantial, supported the verdict. Kellensworth v. State , 2021 Ark. 5, at 4, 614 S.W.3d 804, 807. To be substantial, the circumstantial evidence must exclude every reasonable hypothesis other than the accused's guilt. Id. It is the jury's decision whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence. Id.
Considering the evidence in the light most favorable to the State, the State presented sufficient evidence for the jury to convict Keesee as an accomplice to the premeditated-and-deliberated capital murder of Panduro.
The trial evidence showed that Keesee and Panduro were involved in a drug-trafficking operation. Before the murder, Keesee told his sister, Rachel Walls, that Panduro had stolen weed and had tried to frame him. On occasion, Rachel accepted packages for Keesee. The day before the murder, Rachel received a package addressed to Keesee. Keesee called and told her not to let Panduro pick it up. Yet when Panduro arrived that evening, Rachel gave him the package. As Panduro was leaving, he said to her, "I'm sorry about your brother [Keesee]."
Keesee also told others that Panduro had been threatening him. The weekend before the murder, Keesee told his girlfriend that Panduro "was threatening to cut his fingers off if he didn't give him the money that he owed," and that he "had to get his boys to take care of a situation for him." That same weekend, Keesee sent a text message to another friend stating that he had "just dodged getting kidnapped." And Morstain told his girlfriend that he was going to Arkansas because drugs had been stolen, and he was going to kill him (Panduro).
On the morning of the murder, a gray BMW sedan and a U-Haul truck arrived at the Days Inn and departed right after the murder. Keesee was connected to both vehicles. The BMW was registered to Keesee's business, and Keesee was listed as a contact on the U-Haul truck-rental agreement. Video surveillance showed that at least three individuals were in the two vehicles. Two men, Morstain and Bynum, entered the motel room before shots were fired and exited following the shots.
The murder occurred at approximately 5:45 a.m. Around that same time, Keesee's brother-in-law, Cade Marbury, received a phone call, and after he hung up, he told his wife that he was going to the Days Inn. At around 6:00 a.m., Keesee tried to call his sister, but she did not answer. Sometime before 7:00 a.m., Keesee's mother called into work and asked to take the day off due to a family emergency. At 7:15 a.m., Keesee tried to contact a friend, Haley Barnes, but when she did not answer, he sent her a text message saying,
The two vehicles seen at the Days Inn were later recovered near each other in Sherwood. The BMW was found in the garage that Keesee's brother-in-law rented. And the U-Haul truck was found in a nearby parking lot. Shortly after the murder, surveillance videos captured Keesee and Bynum walking in Sherwood near where police found the BMW sedan and the U-Haul truck. Later that morning, Keesee showed up at Rachel's house. Rachel did not want to let him in but eventually did because their mother called and told her to. When Keesee was there, she noticed blood on his pants. Keesee was supposed to meet Haley that afternoon but did not show up.
After the murder, Keesee fled with Bynum and Morstain to Mexico. Morstain's girlfriend, Julie Holister, testified that she traveled with them to Mexico and stayed with them there. Julie testified that the three had said they were running from the law. Keesee also joked about Panduro's murder, stating that Panduro's son would come back for revenge.
Considering this evidence, we hold that the State presented sufficient evidence to support Keesee's conviction for premeditated-and-deliberated capital murder. Keesee's statements and actions established his motive and intent for Morstain and Bynum to kill Panduro. The State presented evidence that he had solicited Morstain and Bynum to come from Texas to Conway to commit the murder. The State presented circumstantial evidence that he provided the vehicles seen at the crime scene, was present at the murder, helped dispose of the vehicles after the murder, and fled to Mexico with the principals who carried out the murder. Thus, the circuit court did not err in denying Keesee's motions for directed verdict.
Because the State presented sufficient evidence on the premeditated-and-deliberated capital-murder conviction, we need not decide whether the felony-murder conviction was factually deficient. See Griffin v. United States , 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). We have previously affirmed a general guilty verdict so long as there was sufficient evidence to support the conviction on one ground. Norris v. State , 2010 Ark. 174, at 6, 368 S.W.3d 52, 56 ; Terry v. State , 371 Ark. 50, 56, 263 S.W.3d 528, 533 (2007). A guilty verdict decided by special interrogatories does not require any different result. And because we affirm Keesee's sufficiency challenge for premeditated-and-deliberated capital murder, we do not address his arguments that involve his felony-murder conviction, including whether the circuit court erred in denying Keesee's motion to strike the amended information that added felony murder; whether the State's felony-murder charge contradicted its prosecution of, and statement made by, Bynum; and whether the circuit court improperly defined "delivery" in its felony-murder jury instruction.1
Keesee next argues that the circuit court erroneously...
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