Martin v. State, CR

• Decision Date: 02 May 1994
• Docket Number: No. CR,CR
• Parties: Luther MARTIN, Appellant, v. STATE of Arkansas, Appellee. 93-1314.
• Court: Arkansas Supreme Court

Page 81

875 S.W.2d 81

316 Ark. 715

Luther MARTIN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-1314.

Supreme Court of Arkansas.

May 2, 1994.

Jim Pedigo, Hope, for apellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

Appellant Luther Martin was sentenced to forty years imprisonment in the Department of Correction for aggravated robbery of a convenience store in Hope, Arkansas. He raises three arguments for reversal of his conviction: (1) the trial court erred in permitting the prosecutor to twice amend its original information prior to actual trial and in denying Martin's request for a continuance and a new lawyer in light of the fact that the court granted the prosecution's second request to amend; (2) the trial court erred in admitting Detective Bill Otis's testimony as to information received from a third party during his investigation; and (3) the trial court erred in denying his motion for directed verdict.

We first address Martin's challenge to the sufficiency of the evidence prior to a review of his other asserted trial errors. Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994); Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994); Ricks v. State, 316 Ark 601, 873 S.W.2d 808 (1994). On appeal, the evidence is reviewed in the light most favorable to the appellee, and the judgment will be affirmed if there is any substantial evidence to support the jury's verdict. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). Evidence is substantial when it is forceful enough to compel a conclusion one way or the other, beyond suspicion and conjecture. Ricks, supra. We need consider only that testimony which supports the verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

I. Sufficiency of the evidence

Reviewing the evidence in the light most favorable to the State, as appellee, we hold that the evidence was more than sufficient to uphold Martin's conviction.

According to the testimony of Mary Kay Taylor, on December 26, 1992, she was working the 3:00 p.m. to 11:00 p.m. shift at the E-Z Mart convenience store in Hope Arkansas. At about 7:40 p.m., a man, whom she described to police as black, five feet, nine inches tall, with a mustache, hair close to his head, a brown jacket, dark pants, and a plaid shirt, came into the store. He brought a Pepsi to the counter, got a dollar from his pocket, and placed it on the counter. He then put his right hand in his pocket, "as if he had a gun," and said, "Freeze or you're dead." She did freeze, and the robber reached with his other hand over the counter, grabbed all the money out of each slot of the cash register, and headed for the door. As Ms. Taylor moved toward the phone, the robber said, "I told you not to move. I'll kill you." Frightened, she stopped until he went out the door and around the corner. Once he was out of sight, Ms. Taylor called the police. When they arrived, she recounted the events of the evening, emphasizing that while he removed the money, he kept his hand in his pocket as though holding a gun; it was her insistently stated belief that he had a gun.

Sergeant Stan Bailey, a member of the Hope Police Department, testified that he was working as patrol supervisor when he received a radio dispatch shortly after the robbery to look for a black male, five feet, nine inches to five feet, ten inches in height, and weighing 140 to 150 pounds. About seven blocks from the E-Z Mart, the sergeant saw a dirty, "beat up" Ford pickup truck parked on the street. The missing glass window on the driver's side had been replaced with a piece of plastic. A black male was sitting in the passenger side of the truck accompanied by a black female who was standing beside the vehicle. Sergeant Bailey approached them and asked them if they had seen anyone fitting the description he had just received, to which they responded, "No." Later, Sergeant Bailey heard that the robber was supposed to be in an old pickup with plastic on the driver's window. At that point, he contacted Officer Zeke, told him about his contact with the vehicle, and asked him to go to the Shover Village apartment complex to attempt to locate the vehicle.

Acting on the information he received from Sergeant Bailey, Officer Zeke drove to Shover Village, where he spotted a pickup matching the description of the truck. Because the registration check on the truck revealed that it was registered to a Jewel Muldrew, a man for whom warrants were outstanding, Officer Zeke initiated a traffic stop and found that the driver was Martin. Officer Zeke told him that there were active warrants out for the car's owner and that a truck matching that description had possibly been involved in an aggravated robbery. He did not arrest Martin, however, because he did not have a warrant for him.

Detective Gary Wayne Billings explained that after Officer Zeke informed him about stopping Martin, he obtained the photo spread which included Martin's photograph and took it to the E-Z Mart, where Ms. Taylor identified Martin. Later that evening, Sergeant Bailey examined the photo spread and also identified Martin. Based, in part, on Ms. Taylor's and Sergeant Bailey's identification of the suspect, a warrant was issued for Martin's arrest, and he was picked up.

The photo spread was introduced into evidence. Officer Bailey's testimony placing Martin near the scene of the robbery shortly after it occurred and Ms. Taylor's unequivocal testimony identifying Martin as the culprit are sufficient to sustain the appellant's conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990).

II. Amendment of informations

Martin's next argument concerning error on the part of the trial court is premised on the fact that the court permitted the prosecutor, over Martin's objection, to amend the charging instrument, an information, near the beginning of trial and again before the case had been submitted to the jury, and because the trial court refused to grant him a continuance after the second amendment so that he could get a new attorney.

An examination of the record of trial reflects that a felony information was filed with the circuit clerk on December 28, 1992, charging Martin with aggravated robbery pursuant to Ark.Code Ann. § 5-12-103, stating that:

With the purpose of committing a theft, he was armed with a deadly weapon, and knowingly took or exercised unauthorized control over the property of another person, with the purpose of depriving the owner thereof ...

The record further reflects the filing of a supporting affidavit for warrant of arrest, dated December 27, 1992, which alleged that:

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, while being armed with a deadly weapon or representing by word or conduct that he is so armed.

(Emphasis added.) In addition, the affidavit spells out details constituting reasonable cause including the fact that "the suspect simulated a weapon in his right coat pocket while he reached into the cash register...."

On the day of Martin's trial, before voir dire began, the prosecutor asked permission to amend the information. In support of his request, he alluded to the original information and its supporting affidavit:

The affidavit which was approved by the Honorable Jim Gunter when the warrant was issued back on 12/27 of 1992. The language in the affidavit for probable cause had the correct language which correctly cites 5-12-103 Arkansas Code Annotated which is aggravated robbery statute. The only thing in the amended information that is changed is being armed with a deadly weapon or representing by word or conduct that he was so armed. That's the only change that has been made, so certainly there could not be prejudice and we furnished both the affidavits to Mr. Pedigo and it's been with him ever since we completed discovery, so I don't think there is any surprise or prejudice to the Defendant and we would ask to go forward, and of course the Court's instructions would include the language also and that's why we amended it.

Defense counsel objected but acknowledged that he had received a copy of the amended information the day prior to trial. The judge overruled his objection, finding that the amendment was "just to the extent that it conforms with the probable cause affidavit that has been on file...."

A short time later, after the jury panel had been sworn and the first amended information had been read, the prosecutor asked the trial court to allow a second amendment to the charging instrument, explaining that the information should not read, "with the purpose of committing a felony," it should state, "with the purpose of committing...