Miles v. State

• Decision Date: 03 October 2002
• Docket Number: No. CR 01-867.,CR 01-867.
• Citation: 85 S.W.3d 907,350 Ark. 243
• Parties: Cochise MILES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

85 S.W.3d 907

350 Ark. 243

Cochise MILES v.STATE of Arkansas.

No. CR 01-867.

Supreme Court of Arkansas.

October 3, 2002.

Craig Lambert and Richard L. Hughes, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Cochise Miles was tried and convicted of capital-felony murder and two counts of aggravated robbery, resulting in a sentence of life without parole for capital-felony murder plus two consecutive thirty-year sentences for the two counts of aggravated robbery.He now appeals his convictions and challenges the sufficiency of the evidence, the trial court's refusal to strike a juror for cause, the trial court's denial of his motions for a mistrial and a new trial, and the trial court's refusal to enforce the terms of a negotiated plea agreement.We find no error and affirm.

On February 17, 1997, Cochise Miles and Tommy Phillips entered Freight Damaged Foods in southwest Little Rock armed with hand guns.The two hid in back of the store until it closed at 6:00 p.m.Meanwhile, the manager of Freight Damaged Foods, Van Dean Clouse, was unaware of the two men's presence.After the store closed, he moved to the front of the store to close out the registers.Carr Stalnaker, a Frito-Lay employee, was stocking shelves in the rear of the store.At about 6:25 p.m., Phillips went to the front of the store to rob Clouse while Miles stayed in the back to control Stalnaker.Both men were wearing knit caps and bandanas to conceal their identities.

While at the front of the store, Phillips demanded that Clouse give him all the money in the store.Clouse complied and gave him about $200.Phillips then ordered Clouse into a cooler at the rear of the store.He also directed Miles to take Stalnaker to the cooler.As they walked toward the cooler, Stalnaker heard Phillips saying repeatedly, "if there's not any more money than this, somebody's gonna die."Shortly after Clouse and Stalnaker were ushered into a cooler, Phillips and Miles moved them to a second cooler.At that point, Stalnaker and Clouse informed the robbers that they had families and asked the men to just leave with the money.Phillips told them to shut up, and then repeatedly raised and lowered his gun, each time pointing it at Clouse's head.Stalnaker realized that Phillips was "psyching himself up" to kill Clouse.Phillips shot Clouse in the head, killing him.Stalnaker then ran out of the cooler, out the back door, and down an alley.During Stalnaker's escape Miles fired his weapon twice¹.Stalnaker escaped uninjured.Phillips and Miles then ran through the woods to a nearby equipment rental business where Miles's bandana and cap were discovered the following day, along with live 9mm and .22 caliber rounds similar to those found at the Freight Damaged Foods store.

Phillips and Miles were arrested and each charged with capital-felony murder and two counts of aggravated robbery.The cases were severed, and Miles entered into a plea agreement with the State.In exchange for Miles giving testimony against his accomplice, Tommy Phillips, the State agreed to reduce the charges against Miles to first-degree murder and to recommend a twenty-year sentence.

The State elected to try Phillips first.At that trial, Miles testified truthfully that he and Phillips were involved in the aggravated robbery.However, during closing arguments the trial court declared a mistrial.Phillips was then retried and Miles testified again.This time, however, he stated that neither he nor Phillips had anything to do with the crimes.Despite this testimony, Phillips was convicted at the second trial.The State subsequently claimed it was not bound by the plea agreement negotiated with Miles because he had not testified truthfully at his accomplice's second trial.²As a result, the State proceeded to trial on the original charges, and Miles was convicted of capital-felony murder and two counts of aggravated robbery.On appeal, Miles seeks to have his convictions set aside.

I.Sufficiency of the Evidence

In his first point on appeal, Miles asserts that the evidence submitted at trial is insufficient to support the capital-felony murder conviction and that the court erred in denying his motions for a directed verdict at the close of the State's case and at the close of all the evidence.As a threshold matter, we note that Miles admits his involvement in the aggravated robbery but asserts that the evidence submitted at trial, when viewed in light of the capital-felony murder affirmative defense, was insufficient to support the capital-felony murder conviction.We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence.Britt v. State,344 Ark. 13, 38 S.W.3d 363(2001).The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial.Id.Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture.Id.On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.Id.

Capital murder under section 5-10-101 of the Arkansas Criminal Code provides in pertinent part that:

(a) A person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit ... robbery ... and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to human life;

* * * * * *

(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.

Ark.Code Ann. §§ 5-10-101(a)(1), (b)(Repl.1997).Miles bases his sufficiency challenge solely upon the affirmative defense set forth in section 5-10-101(b).Miles was therefore required to prove his affirmative defense by a preponderance of the evidence.Ark.Code Ann. § 5-1-111(d)(Repl.1997).As previously noted, Miles admits he participated in the aggravated robbery that culminated in the murder of Clouse.However, he asserts that he did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission, and was in fact surprised by it.

We have previously ruled on this issue in a similar case.In Arnett v. State,342 Ark. 66, 27 S.W.3d 721(2000), the defendant was convicted of capital-felony murder.She argued that the trial court erred in denying her motion for a directed verdict where she asserted an affirmative defense because she was merely present at the murder and took no part in it.Id.We stated that to sustain a conviction of capital-felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as she was an accomplice to, and had the requisite intent for, the underlying felony.Id.(citingBritt v. State,334 Ark. 142, 974 S.W.2d 436(1998)).In this case, the defendant admits committing and being an accomplice to the underlying felony, that is, to the aggravated robbery.That admission alone is adequate grounds to affirm.Nonetheless, the result would be no different had Miles argued that the evidence viewed as a whole was insufficient to support the verdict.The evidence presented at trial shows that Miles and Phillips agreed to rob Freight Damaged Foods armed with weapons.They both hid in the back of the store until it closed.They then covered their faces with bandanas and their heads with caps and used their weapons to control Clouse and Stalnaker in the store.After Phillips took money from Clouse, Miles helped usher the two victims back into a cooler under gun point.In the cooler, Miles continued to help Phillips keep control of the victims.Phillips then shot and killed Clouse, and Stalnaker escaped out the door.

The evidence set out above is sufficient to convict Miles of capital-felony murder, as well as aggravated robbery.The affirmative-defense provision in section 5-10-101(b) does not relate to the intent of the accomplice in relation to the murder; rather, it refers to the accomplice's actions leading up to the murder: "[T]hat the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission."Ark.Code Ann. § 5-10-101(b).Thus, in this case, a jury could reasonably conclude from Miles's actions during the robbery that he induced, procured, or aided in the murder of Clouse.We therefore affirm the trial court's denial of the motion for a directed verdict.

II.Challenge for Cause of Prospective Juror

Miles next asserts that the trial court erred in refusing to strike a prospective juror for cause.The juror, Judy Kaye Mason, is an Assistant City Attorney for the City of Little Rock.Following the court's adverse ruling, Miles utilized one of his peremptory challenges to excuse Ms. Mason.On appeal, he does not challenge the impartiality of the jury that was in fact selected, but instead contends that the prospective juror should have been excused for cause.

We have continually stated that the loss of a peremptory challenge cannot be reviewed on appeal and that the appeal focuses specifically on those who were seated on the jury.Branstetter v. State,346 Ark. 62, 57 S.W.3d 105(2001);Ferguson v. State,343 Ark. 159, 33 S.W.3d 115(2000);Bangs v. State,338 Ark. 515, 998 S.W.2d 738(1999);Willis v. State,334 Ark. 412, 977 S.W.2d 890(1998).Judy Kaye Mason was not seated on the jury and, therefore, Miles presents no cognizable claim for relief.Furthermore, a challenge must show that the appellant was...