Lear v. State, CR82-110

• Decision Date: 20 December 1982
• Docket Number: No. CR82-110,CR82-110
• Citation: 643 S.W.2d 550,278 Ark. 70
• Parties: Jack LEAR, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 550

643 S.W.2d 550

278 Ark. 70

Jack LEAR, Appellant, v. STATE of Arkansas, Appellee.

No. CR82-110.

Supreme Court of Arkansas.

Dec. 20, 1982.

Smith, Stroud, McClerkin, Dunn & Nutter by Robert S. McGinnis, Jr., Texarkana, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury convicted the appellant of aggravated robbery (Ark.Stat.Ann. § 41-2102 [Supp.1981] ) and fixed punishment at life imprisonment. For reversal, the appellant, through court appointed counsel, first argues that all four of the principal witnesses against him, Tommy Lear, Jerry Lear, Brenda Taylor and Bobby Goleman, were accomplices as a matter of law, and that the other evidence was insufficient to corroborate their testimony as required by Ark.Stat.Ann. § 43-2116 (Repl.1977). We disagree.

The appellant's nephews, Tommy Lear and Jerry Lear, took money, at gun point, from the Commercial National Bank at Fouke, Arkansas. They pled guilty to aggravated robbery before appellant's trial at which they were state witnesses. Jerry Lear testified that the appellant had planned the robbery three or four days before, enlisting his and Tommy's aid, with the understanding they would receive $1,000 each. The appellant was to receive the balance of the robbery proceeds. Tommy Lear first testified that he and Jerry were to get $1,000 each, but he did not know where the rest was supposed to go because the appellant was not much involved in the robbery. Later, he admitted telling police that the appellant had hired him and Jerry for $1,000 to commit the robbery, and he was afraid to tell the whole truth at trial because of the danger of reprisal. The other principal witnesses against the appellant are Brenda Taylor and Bobby Goleman. The state concedes that the Lears, appellant's nephews, are accomplices as a matter of law but contends that Taylor and Goleman, whose testimony is recited later, are not.

The trial court instructed the jury in the language of the statute on the definition of an accomplice and the necessity of corroboration. Ark.Stat.Ann. § 41-303(1) defines accomplice:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(a) solicits, advises, encourages or coerces the other person to commit it; or

(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark.Stat.Ann. § 43-2116 (Repl.1977) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

In Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980), we stated that the defendant in a criminal case has the burden of proving that a witness is an accomplice whose testimony must be corroborated; whether a witness is an accomplice is usually a mixed question of fact and law; and the finding of the jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. As stated in Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977), "[m]ere presence, or negative acquiescence and passive failure to disclose the crime are neither separately nor collectively sufficient to make one an accomplice." Further, we reiterated: 'The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime.'

Taylor, who was also charged with aggravated robbery, testified that she was in appellant's car when he followed his nephews to Fouke, Arkansas. She was aware of the plans to rob the bank. They drove toward a rendezvous point outside Fouke, where the nephews were to leave appellant's share of the money. Following the robbery, they followed the Lears for about two miles until a police car appeared and then "we cut off". Taylor denied any complicity or active participation other than the knowledge of the planned offense. Appellant argues that Taylor had a legal duty to make a proper effort to prevent the offense, about which she had knowledge, which she failed to do.

Goleman, 18 years of age, testified that he was present when plans were discussed by the appellant for the robbery. The appellant asked him to drive the automobile during the robbery, which he refused to do. Appellant offered him one-fourth of the total robbery proceeds and the remainder was to be split between the appellant and his two nephews. However, he did not think the Lears were serious about the robbery and did not notify the police. It is undisputed he declined any participation in the offense. He was not an accomplice as a matter of law. Wilson & Dancy v. State, supra.

As we recently stated in Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982), corroborating evidence is sufficient if, independently of the testimony of the accomplice, it tends in some degree to connect the defendant with the commission of the crime. Here, the testimony of Goleman connected the appellant with the commission of the crime and sufficiently corroborated the essential point that the appellant actively participated in the bank robbery. This being true, we...