Norris v. State, 2010 Ark. 174 (Ark. 4/15/2010)
| Decision Date | 15 April 2010 |
| Docket Number | 09-1016. |
| Parties | Paul Anthony NORRIS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
A Saline County jury convicted appellant Paul Anthony Norris of capital murder, two counts of aggravated robbery, and first-degree battery.1 The trial court sentenced Norris to life imprisonment without parole for the capital murder conviction, twenty-five years on each aggravated robbery charge, and twenty years for first-degree battery. Norris argues on appeal that the trial court erred in denying his motions for a directed verdict on the capital murder and aggravated robbery charges, and in refusing to submit his proffered jury instructions on imperfect self-defense and negligent homicide.
Norris first argues that the circuit court erred in denying his motion for a directed verdict on charges of capital murder and aggravated robbery. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). The appellate court reviews the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). This court affirms a conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence—either direct or circumstantial—that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).
Circumstantial evidence may constitute substantial evidence to support a conviction. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id.
A person commits capital murder if acting alone or with one or more other persons, he commits or attempts to commit aggravated robbery "and in the course of and in furtherance of" aggravated robbery "or in immediate flight" therefrom, the "person or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life." Ark. Code Ann. § 5-10-101(a)(1) (Supp. 2007). Aggravated robbery occurs when a person "(1) [i]s armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) [i]nflicts or attempts to inflict death or serious physical injury upon another person." Ark. Code Ann. § 5-12-103 (Repl. 2006). A person commits robbery by employing or threatening to immediately employ physical force upon another with the purpose of committing a felony or misdemeanor theft. Ark. Code Ann. § 5-12-102 (Repl. 2006). The "[i]ntent to commit a robbery may be inferred from the facts and circumstances of a particular case," Harper v. State, 359 Ark. 142, 151, 194 S.W.3d 730, 735 (2004).
Review of the record reveals the following facts. Alex Ragan testified at trial that he and neighbor Derrick Kellems attempted to purchase marijuana on September 5, 2008. Ragan spoke with Charles Moore over the telephone, who directed Ragan to meet with an individual named "Creo." Ragan and Kellems later drove with Creo to a house where Creo went inside with Ragan's money to purchase marijuana but never returned. Kellems eventually went inside the house but failed to locate Creo.
Ragan then called Charles Moore, who told Ragan that he would get his "guys together" to help get the money back. To this end, Moore told Ragan to call appellant Norris. Ragan and Kellems drove to meet Norris, who was waiting outside his grandmother's house with an individual named Tim Jackson, and they subsequently picked up another friend of Norris, Justin Gatewood. Norris then directed Ragan to drive to an abandoned house. Upon arrival, Ragan, Norris, Jackson, and Gatewood went into the house through the front door, eventually exiting through the back in what Ragan believed at the time was a search for Creo; Kellems went directly around to the back of the house. Ragan testified that after he emerged from the house and stood next to Kellems, Norris approached from inside the house and suddenly delivered a single blow to Kellems's head with a two-by-four. Norris then struck Ragan in the head with the two-by-four. Ragan stated that Norris's attack was unprovoked and a surprise, because they were "suppose[d] to be friends."
After receiving Norris's blow to his head, Ragan was attacked by Jackson and Gatewood while attempting to get to his car and make a call with his cell phone. Ragan testified that Gatewood punched him and demanded money from him, and that Norris then approached from the direction of the house and similarly demanded money after grabbing him. After he was punched several more times, Ragan testified that Norris, Jackson, and Gatewood began searching his car for money and told Ragan to "go help your buddy."
According to Ragan's testimony, Kellems was "stumbling around," had difficulty speaking, and "there was blood all over his face." As Ragan tried to assist Kellems to the car, Kellems lay down on a cushion and whispered for Ragan to go get help. Ragan drove home where his wife insisted he go to the hospital. Detectives arrived at the hospital and Ragan gave them directions to Kellems's location to the best of his knowledge. Benton Police Department officer Jimmy Thompson located Kellems near the abandoned house and transported him to the hospital. Thompson's search of Kellems's person revealed neither a wallet nor a weapon. Although Ragan testified that Kellems had a "set of pliers or something whenever he was at the house that Creo stole the money," Ragan stated that he never saw Kellems with the Leatherman multi-tool in his hand at the abandoned house, nor did he see Kellems wield it at the abandoned house.
Kellems died on September 21, 2008, sixteen days after he was transported to the hospital. Forensic pathologist Dr. Stephen Erickson testified that Kellems died from complications resulting from trauma to the skull and brain and ruled the death a homicide. Dr. Erickson compared the force of the blow to Kellems's skull as the equivalent of someone "swinging for the fence."
Ragan later identified Norris as his and Kellems's assailant from a photographic line-up. Investigation by the Benton Police Department indicated that Norris and/or his family once lived in the abandoned house. A two-by-four was found at the house along with various items belonging to Ragan and Kellems; their wallets, however, were not recovered.
Following his arrest, Norris provided a video-taped statement to the Benton Police Department in which he acknowledged that he was aware that Ragan and Kellems "had been robbed" earlier in the day, but got into Ragan's car ostensibly to help search for Creo. Norris told Benton police that he "was already kind of heated" when he got into the car and directed Ragan to drive to the abandoned house, and that after they arrived at the house "we was acting like we were looking for Creo." Further, Norris admitted to Benton police that he struck Kellems once with the two-by-four hard enough that "it sounded like it was somebody swinging a baseball bat."
Norris first argues that "the State failed to sustain its burden of proof under the felony murder provision in that it was not shown that [he] caused the death of Kellems in the course of and in furtherance of an aggravated robbery." Viewing the evidence in the light most favorable to the State as the court must, there is sufficient evidence that Norris killed Kellems in the course and furtherance of robbery. Although Norris asserts a lack of "nexus between the alleged murder of Kellems and any aggravated robbery," Ragan testified that after striking both victims, Norris grabbed him and demanded money. This court, citing previous decisions, stated in Clay v. State, 324 Ark. 9, 12, 919 S.W.2d 190, 191-92 (1996) that
the State need only prove that the robbery and the murder were parts of the same transaction, or occurred within the same brief interval, to support a conviction of capital felony murder. In such cases, we do not . . . require the State to show a "strict causal relationship between the felony and the homicide."
Ragan's testimony concerning Norris's conduct in striking Kellems and subsequent demand for money from Ragan, combined with Norris's statement to police and other evidence described above, provided sufficient evidence of a "nexus" between the murder and robbery.
Norris likewise challenges the sufficiency of the evidence to support the State's alternative charge of premeditated and deliberated capital murder under Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2006). However, because the State presented sufficient evidence supporting Norris's jury-conviction for capital felony murder under § 5-10-101(a)(1) upon a general verdict, we will not consider the sufficiency of evidence supporting the alternative charge of premeditated and deliberated murder under § 5-10-101(a)(4). Terry v. State, 371 Ark. 50, 263 S.W.3d 528 (2007) (...
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