McCullon v. State
| Docket Number | CR-22-619 |
| Decision Date | 14 December 2023 |
| Citation | 679 S.W.3d 358 |
| Parties | Corey MCCULLON, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT[NO. 16JCR-19-1533], HONORABLE RANDY F. PHILHOURS, JUDGE
Tinsley & Youngdahl, PLLC, Little Rock, by: Jordan B. Tinsley, for appellant.
Tim Griffin, Att’y Gen., by: Christian Harris, Sr. Ass’t Att’y Gen.; and Walker K. Hawkins, Ass’t Att’y Gen., for appellee.
1On March 11, 2022, a Craighead County Circuit Court jury convicted appellant, Corey McCullon, of first-degree murder, aggravated residential burglary, terroristic act, and first-degree terroristic threatening, for which he was sentenced as a habitual offender to concurrent sentences of thirty-five years’ imprisonment, ten years’ imprisonment, five years’ imprisonment, and one year’s imprisonment, respectively.This sentence was imposed to run consecutively to two sentence enhancements—a fifteen-year sentence for the use of a firearm in the commission of a felony and a ten-year sentence for the commission of first-degree murder in the presence of a child—for an aggregate term of sixty years’ imprisonment.
On appeal, McCullon presents nine points: (1) there was insufficient evidence to support his convictions, and the lower court erred when it (2) admitted historical cell site location information analysis; (3) admitted MC1’s pretrial identification and permitted her to identify McCullon in court; (4) admitted MC2’s pretrial identification and permitted him to identify McCullon in court; (5) overruled McCullon’s objection to the racial composition of the jury 2panel; (6) excluded evidence that the victim’s neighbor saw three men in the victim’s driveway on the night of the homicide; (7) denied McCullon’s requests for jury instructions on lesser-included offenses; (8) denied McCullon’s motion to exclude an in-court identification of McCullon by Devon Wilson; and (9) denied McCullon’s motion to dismiss the firearm enhancement.
On September 28, 2023, we accepted certification of this case from the Arkansas Court of Appeals on the basis that it involves an issue of first impression and a substantial question of law concerning the validity, construction, or interpretation of an act of the General Assembly.See Ark. Sup. Ct. R. 1-2(b)(1), (6).We affirm.
This appeal stems from a home invasion in Jonesboro that resulted in the shooting death of Keisha Criglar on or about November 20, 2019.On December 20, 2019, McCullon was charged with first-degree murder, aggravated residential burglary, terroristic act, and first-degree terroristic threatening.1The State later amended the criminal information to charge McCullon as a habitual offender and impose two additional sentence enhancements—one for the use of a firearm in the commission of a felony, and one for the commission of first-degree murder in the presence of a child.SeeArk. Code Ann. §§ 5-4-501(Supp. 2019); 5-4-702 (Supp. 2019); and 16-90-120 (Supp. 2019).On March 8-11, 2022, McCullon’s jury trial was held.The record before us establishes the following facts.
According to the evidence presented at trial, at around 6:00 a.m. on November 20, 2019, Criglar’s minor children went to a neighbor’s home and told her that their mother had 3been shot.The neighbor immediately called law enforcement, and officers with the Jonesboro Police Department("JPD") arrived at the scene, located at 603 Meadowbrook, shortly thereafter to find that the front door appeared to have been forced open.During a search of the home, law enforcement discovered Criglar’s body, and it was noted that Criglar had sustained multiple injuries to her arms, legs, and chest that appeared to be gunshot wounds.Law enforcement also observed ten .40-caliber shell casings in various areas of the home, along with bullet holes in the walls and floor.Detective Rodney Smith with the JPD testified that a bullet had been fired into the floor of the children’s bedroom.Dr. Adam Craig, an associate medical examiner at the Arkansas State Crime Laboratory, testified that Criglar had been shot ten times.
Detective Josh Wiiest with the JPD testified that he reviewed audio and video footage captured by the surveillance cameras of a nearby pawn shop, and beginning at approximately 12:18 a.m. on November 20, he heard what he believed to be the gunshots that were fired at Criglar’s home.
Devon Wilson and Essence Singleton, both friends of Criglar’s, testified that they had been to a house party with Criglar on the evening of November 19.According to their testimony, Singleton dropped both Criglar and Wilson off after the party.Wilson testified that Criglar invited him over to her house soon after to listen to music and have a few drinks, and that he arrived around 11:00 p.m. Wilson further testified that, about an hour later, before leaving Criglar’s home, he went to the restroom and heard someone kick in the front door followed by a loud argument soon after.Specifically, Wilson testified that he heard someone say, "where my money at" to which Criglar responded, "I told you I ain’t got your money."As he was running out of the house, Wilson saw a short, "dark-skinned" man with gold teeth standing in front of Criglar holding a gun.
4Criglar’s minor children, MC1 and MC2, were interviewed by police about the events surrounding their mother’s murder.2On November 20, the children were shown photo lineups, and both MC1 and MC2 positively identified McCullon as the man who had broken into their home the night before.At trial, MC1 testified that a few days before her mother was murdered, she remembered a man coming to her house saying that he had lost some money, to which her mother responded that she did not have any money.MC1 and MC2 both testified that they were awoken by a commotion and heard gunshots on the night of the home invasion.MC1 testified that a man entered the room saying, "[G]ive me some money," before he fired a shot into the bedroom floor and searched the children’s closet.MC2 testified that the man asked "[MC1], where’s the money at," and said that he was going to kill them.MC1 testified that she and her brothers later got up to lock the front door and saw their mother lying on the couch unresponsive.The children returned to their room until the next morning when they told their neighbor what had occurred.At trial, MC1 and MC2 identified McCullon once again as the man they saw in their bedroom the night of Criglar’s murder.
Janice Williams, Criglar’s mother, testified that she witnessed an argument between Criglar and McCullon on November 17, after she and Criglar arrived at Criglar’s home to find McCullon parked in the driveway.Williams testified that during this argument, McCullon accused Criglar and MC1 of stealing money from him, and Criglar repeatedly denied having done so.Williams testified that McCullon said, "[W]ell, I’m going to get my money."Lacretia Sheppard, a friend of Criglar’s, provided law enforcement with McCullon’s cell phone number because she believed McCullon—whom she referred to by his nickname "Shawt," or 5"Short"—was involved in the murder.Sheppard testified that on November 18, Criglar told her that she saw McCullon sitting outside down the street, and Criglar believed he was looking at her home.
A "ping" warrant was obtained for McCullon’s cell phone number in an attempt to locate him, and a search warrant was also obtained to access the records of that cell phone.Using cell phone location information, police were able to create a map of McCullon’s movements and determine that his cell phone had stopped moving in Caruthersville, Missouri.At trial, the State called Special Agent Blake Downing with the FBI’s Cellular Analysis Survey Team ("CAST") to discuss historical cell site location information ("CSLI") analysis and his conclusions regarding McCullon’s cell phone records.Agent Downing testified that after reviewing McCullon’s cell phone records, he was able to determine the following: that, between 11:06 p.m. and 11:18 p.m. on November 19, McCullon’s cell phone was traveling closer to Criglar’s home on 603 Meadowbrook.Agent Downing’s historical CSLI analysis report demonstrated that from 11:28 p.m. on November 19 to approximately 12:24 a.m. on November 20, McCullon’s cell phone was located in the general area around 603 Meadowbrook, and by 12:33 a.m., it was away from the address.The report further demonstrated that McCullon’s cell phone traveled away from the area of the crime scene heading south on I-555 and arrived in the Trumann area at 1:27 a.m., and the travel ultimately stopped in the Caruthersville area at approximately 2:39 a.m.
On November 20, just before 7:00 p.m., officers with the JPD contacted the Caruthersville Police Department("CPD") to provide them with information about the case, including a description of McCullon’s vehicle—a gold Chevrolet Malibu—and an address where McCullon might be found.Assistant Chief Terry Privett with the CPD testified that, 6shortly after receiving this call, McCullon’s vehicle was located at Lanisha Sargent’s apartment and McCullon was subsequently arrested for Criglar’s murder.Officer Dustin Fitzwater with the CPD testified that during a search of Sargent’s apartment, a manufacturer’s firearm box for a SpringfieldXDM .40-caliber Smith & Wesson handgun and thirty-seven live rounds of ammunition were seized.The CPD turned this evidence, along with the clothes that McCullon was wearing at the time of his arrest, over to the JPD.Rachel Ganley, a criminalist at the Arkansas State Crime Labo- ratory, testified that McCullon’s jacket tested positive for gunshot residue.
Prior to jury selection, McCullon objected to the composition of the venire.Specifically, McCullon contended that there were sixty-four potential jurors in the jury pool, and only four of those potential jurors were African...
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