McGehee v. State

• Decision Date: 05 May 1997
• Docket Number: No. CR,CR
• Citation: 328 Ark. 404,943 S.W.2d 585
• Parties: Charles Allen McGEHEE, Appellant, v. STATE of Arkansas, Appellee. 95-368.
• Court: Arkansas Supreme Court

Page 585

943 S.W.2d 585

328 Ark. 404

Charles Allen McGEHEE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-368.

Supreme Court of Arkansas.

May 5, 1997.

BROWN, Justice.

This appeal emanates from a judgment of conviction for capital murder and a sentence of life without parole. The appellant, Charles Allen McGehee, and his co-defendant, Joseph O'Neal, were tried together in a seven-day trial with two separate juries deciding the fate of the two men. McGehee contends that the evidence sustaining his conviction was insufficient and that the gaps in the transcribed record of the trial and attendant hearings deprives this court of full review. We agree on the second point, and we reverse and remand for a new trial.

On May 10, 1993, McGehee and Joseph O'Neal were charged with capital felony murder in connection with the death of Louisa M. Johnson, who was age 92. Robbery and burglary were designated as the predicate felonies, but the information was later amended to include rape as an underlying felony.

The facts of the case are taken from trial testimony. On April 20, 1993, at 8:17 a.m. Dermott Chief of Police Jerry Melton responded to a call at the victim's home. The call had been placed by a home health care nurse, Bonnie Jordan. Melton testified that the victim's house was in disarray. He said that Mrs. Johnson was found under a pile of quilts and cushions. Only her legs were visible. During his examination of the premises, Melton discovered that three telephone lines outside of the house had been cut. He also found a window with a cut and torn screen. He further found two cans of malt liquor with pink napkins around them on the steps to the back porch of the house. Toward the back of the house, there was a television set placed on the corner of the deep freeze.

Melton told the jury that Johnson was lying face down with her hands tied behind her back with a necktie and her feet tied at the ankles, also with a necktie. He stated that it appeared as though the blanket had been wrapped around her head. She was wearing a nightgown, apron, and white underwear. The white underwear was torn on the back side, and the back of the nightgown was tucked inside the underwear. Melton testified that one of the bedrooms had been ransacked. He further testified that there was a purse in the living room floor that had been emptied. He added that a billfold had been taken from the purse, and it too was lying on the floor. The malt liquor cans and the pink napkins were collected and sent to the State Crime Lab for analysis. He later learned through his investigation that the pink napkins like the ones found with the malt liquor cans had come from a local nightclub called Rose's Cafe. The owner of the nightclub gave Melton the name of "Ba-Ba" as a suspect. Melton knew that Ba-Ba was the street name for Joseph O'Neal.

Sergeant Garland McAnally of the Arkansas State Police testified that Chief Melton asked him to take a statement from O'Neal, which he did on April 21, 1993. The written statement was read into evidence at trial. In the statement, O'Neal told how he and "Bosco" (McGehee) were drinking together on the night of April 19, 1993. They bought some crack cocaine. O'Neal then went into Rose's Cafe and bought two cans of beer. He got napkins to wrap around the beer cans. He and McGehee then walked up the street and smoked their crack. They ended up finishing their crack, while sitting on Mrs. Johnson's back doorstep.

Next, according to O'Neal's statement, McGehee asked to borrow O'Neal's knife. O'Neal then observed McGehee cutting the window screen to the house. McGehee came around and opened the screen door and kicked the wooden door open. O'Neal stated that McGehee held Mrs. Johnson in the living room while he searched the house for money. He told McGehee not to let her see his face because she would recognize him. O'Neal looked through Johnson's purse in the living room. He recovered eighty cents from a change purse. O'Neal stated that before he left the room he saw McGehee with his hand underneath the victim's dress. He stated that McGehee tied the victim and that after they left McGehee had a $20 bill. After leaving, the two men went in search of more crack cocaine. They later split the money at the Junior Food Market. The State introduced the confession as against O'Neal only, but it is unclear whether the McGehee jury was also present at the time.

Chief Jerry Melton testified that McGehee was arrested on April 21, 1993, and that he was intoxicated at the time. He advised McGehee of his rights, and McGehee was incarcerated. The next day, McGehee was Mirandized a second time. A statement was taken, but the circumstances surrounding the taking of the statement and its introduction at trial are not found in the record.

Dr. Perettie, an associate medical examiner and forensic pathologist for the State, testified that there was evidence from an autopsy of the victim of strangulation, head injuries, vaginal injuries, and other abrasions and contusions. The victim also had numerous recently broken teeth. He further described the injuries to the victim's neck. There were four abrasions to the inside of her right thigh and evidence of a trauma to the vagina. In his opinion, the victim died of strangulation by choking. Dr. Perettie could not say, however, that the victim had been raped, and there was no evidence of semen.

After the State rested, counsel for McGehee moved for a directed verdict. He argued that the State had not proven that a rape actually occurred or that the victim died under circumstances manifesting extreme indifference to the value of human life. The prosecutor retorted by pointing to the injuries to Johnson's vagina and to her torn undergarments and argued that penetration was a fair inference. The trial court denied the motion for directed verdict.

McGehee took the stand in his own defense and described his long-time abuse of alcohol and drugs. In his rendition of events, he reversed the roles of the two men, as related in O'Neal's statement. He stated that his use of cocaine had caused him to commit a previous burglary and that he had been convicted of the burglary. He also had a prior conviction for assault. He testified that he was in Rose's Cafe in Dermott on April 19, 1993, when O'Neal came in at about 8:30 p.m. He testified that O'Neal asked if he wanted to smoke some crack cocaine. They went to a friend's house and smoked crack. Later, O'Neal asked him if he wanted to commit a breaking and entering. O'Neal told him that there could be up to $3,000 to $5,000 in the proposed victim's house. The two men each bought a beer at Rose's Cafe and walked to the victim's back yard. McGehee testified that O'Neal cut the telephone wire, and he (McGehee) cut the window screen but could not open the inside window. He stated that O'Neal then ran through the door. After McGehee did not hear any gunshots, he entered the house. He saw O'Neal holding the victim on the couch by her waist with a blanket or a sheet over her head. McGehee grabbed some neckties and tied her legs, while O'Neal tied her hands. He then began to search the house and found a few dollars and some change. He picked up a television set from the bedroom, but O'Neal stopped him because someone might see him with it. McGehee then watched over the victim while O'Neal searched the house. McGehee thought that O'Neal found a $20 bill. McGehee said he ran from the house, and O'Neal came running one to two minutes behind him. They were unsuccessful in finding more crack cocaine and departed for the evening. McGehee testified that Mrs. Johnson was still alive when he left the house and that he learned of her death the next morning. McGehee acknowledged that he went by the street name of "Bosco."

The McGehee jury found McGehee guilty of capital murder, burglary, rape, and robbery. ¹ Following the penalty phase, he was sentenced to life in prison without the possibility of parole. The judgment and commitment order shows only the conviction for capital murder and the sentence of life without parole.

I. Insufficient Evidence

McGehee argues on appeal that the State did not prove that a rape actually occurred, and thus the evidence supporting his conviction for capital felony murder was insufficient. He also argues that there was no proof that the victim died under circumstances manifesting extreme indifference to the value of human life, which is also an element of capital felony murder. See Ark.Code Ann. § 5-10-101 (Repl.1993). These are the same arguments he posited in his motion for a directed verdict at trial.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). In order for circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

McGehee premises his argument on evidence supporting his thesis that there are other explanations for the trauma to the victim's vagina and that Dr. Perettie testified that it was possible that Mrs. Johnson's death was accidental. In this regard, McGehee...