Lewis v. State

• Decision Date: 17 December 2014
• Docket Number: No. CR–14–222,CR–14–222
• Citation: 451 S.W.3d 591,2014 Ark. App. 730
• Court: Arkansas Court of Appeals
• Parties: Akeem Allajowuan Lewis, Appellant v. State of Arkansas, Appellee

2014 Ark. App. 730

451 S.W.3d 591

Akeem Allajowuan Lewis, Appellant

v.State of Arkansas, Appellee

No. CR–14–222

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered December 17, 2014

Morris Law Firm, P.A., by: Jimmy C. Morris, Jr., Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., Little Rock, for appellee.

Opinion

KENNETH S. HIXSON, Judge

After a jury trial in Independence County Circuit Court, appellantAkeem Allajowuan Lewis was convicted of two counts of second-degree murder in the shooting deaths of John L. Weeams and Omar Scales.Appellant was sentenced to consecutive eight- and twenty-year prison terms, respectively.On appeal, appellant argues (1) that the State failed to negate his justification defense, and (2) that the trial court abused its discretion in running his sentences consecutively instead of concurrently.We affirm.

Appellant's criminal charges were the result of a shootout between John L. Weeams and appellant.The shootout happened at a night-time gathering on July 6, 2013, at Bennie Dodd's residence located at 295 Dry Run Circle in Batesville, Arkansas.Appellant concedes on appeal that he shot both victims, although shooting Omar Scales was accidental because Scales was an innocent bystander.Appellant's first argument is that he raised the defense of justification and that the State failed to carry its burden to disprove that defense beyond a reasonable doubt.We disagree with his argument.

Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt.Green v. State,2011 Ark. App. 700, 2011 WL 5562803.Whether one is justified is largely a matter of the defendant's intent and is generally a fact question for the jury.Id.A defendant's intent is ordinarily not subject to proof by direct evidence but must usually be established by circumstantial evidence.Id.Critical to this inquiry is the reasonableness of the accused's apprehension that he was in danger of death or of suffering great bodily harm.Id.Also critical is whether the accused used all reasonable means within his power and consistent with his personal safety to avoid the use of deadly force.Id;see alsoArk.Code Ann. § 5–2–607(Repl. 2006).

As requested by defense counsel, the jury was instructed on the justification defense as to the murder of Weeams¹ based on Arkansas Model Jury Instruction—Criminal 705:

Akeem Lewis asserts as a defense to the charge of second degree murder that deadly physical force was necessary to defend himself.This is a defense only if; First, Akeem Lewis reasonably believed that John Weeams was committing or was using or about to use unlawful deadly physical force; And second, Akeem Lewis only used such force as he reasonably believed to be necessary.

A person is not justified in using deadly physical force if he knows that the use of deadly physical force can be avoided with complete safety by retreating.However, he is not required to retreat if he was not the original aggressor.

Akeem Lewis is asserting this defense and is required only to raise a reasonable doubt in your minds....Reasonably believes or reasonable belief means the belief that an ordinary, prudent man would form under the circumstances in question and one not recklessly or negligently formed.

When reviewing the sufficiency of the State's negation of a justification defense, the appellate court employs a substantial-evidence standard of review.Jones v. State,2011 Ark. App. 92, 2011 WL 539113.Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion and conjecture.Id.We view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict.Id.We will not reverse the jury's decision in rejecting a justification defense unless the verdict required speculation and conjecture.Moody v. State,2014 Ark. App. 538, 444 S.W.3d 389.The jury, not our court on appeal, weighs the evidence and judges credibility of witnesses.Id.The fact-finder is not required to set aside common sense and need not view each fact in isolation, but rather considers the evidence as a whole.Williams v. State,96 Ark. App. 277, 241 S.W.3d 290(2006).Flight is probative evidence of guilt.Gillard v. State,366 Ark. 217, 234 S.W.3d 310(2006).

Testimony at the jury trial revealed the following.There was a party at Mr. Dodd's residence that night.Weeams and appellant were both outside, on or near Dodd's porch, shortly before the shooting started.The men exchanged words; it was interpreted as “a verbal altercation” between the two.²Moments later, the men started shooting at one another.Weeams fired his .38 revolver several times in appellant's direction, and appellant fired his 9mm semiautomatic weapon several times in Weeams's direction.Appellant then fled on foot.Weeams was struck by one bullet in the upper left chest; that bullet exited his back slightly lower and toward the right side.Weeams bled to death at Dodd's house.

Scales was nearby but not involved in this gunfight; he was struck in his torso near his pelvis.Although conscious at the scene, Scales was transported by ambulance to the local hospital, where he died.A 9mm bullet was removed from Scales's body at autopsy.

The jury had to decide, among other things, who drew his weapon and began firing first and whether appellant was justified in acting as he did.Datra Strickland testified that she and Weeams were living together at the time of his death, and she was with him at the gathering at Dodd's house.She said that although she had been drinking at the gathering, she was clear on the circumstances of the shootout.She said that she and Weeams were on Dodd's porch, about five feet away from appellant, when appellant made a comment to Weeams, pulled a gun from his pants, and started shooting.Strickland testified that Weeams fired many shots in return but that appellant's gun fired a lot faster than Weeams's gun.She saw appellant run away.When it was over, she and Weeams went inside Dodd's house and sat on Dodd's couch.Very soon she observed blood coming out of Weeams's mouth.Strickland called 911, but Weeams died on the scene.

Sergeant Shawn Stephens testified that in responding to the call just after 8:00 p.m., and in speaking with Strickland, she described appellant as a lighter-skinned, tall, thin African–American man in his twenties.According to Stephens, Strickland told him that she did not know what happened.

Another person at Dodd's house that night was Robert Tosh Smith(a/k/a “Jukie”).Smith was interviewed by law enforcement officers three days after the shooting.In that recorded interview, Smith told officers that appellant was the first to pull his 9mm gun out and start shooting at Weeams.Smith described appellant firing his gun, running backward off the porch, and continuing to fire as he ran toward the street.Smith provided a handwritten statement the same day, reflecting this same course of events.Smith testified, however, that he later “made a correction” by telling law enforcement that Weeams was the first to pull his .38 revolver.Smith agreed that the recorded interview with officers was his “best recollection at that particular time,” but stated that ...