Pilcher v. State

• Decision Date: 15 October 1990
• Docket Number: No. CR,CR
• Citation: 303 Ark. 335,796 S.W.2d 845
• Parties: Frank PILCHER, Appellant, v. STATE of Arkansas, Appellee. 90-89.
• Court: Arkansas Supreme Court

Page 845

796 S.W.2d 845

303 Ark. 335

Frank PILCHER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-89.

Supreme Court of Arkansas.

Oct. 15, 1990.

Richard Hughes, Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

The appellant, Frank Pilcher, was convicted of capital felony murder and sentenced to life imprisonment without parole. The evidence showed that Pilcher shot the decedent, Jeffery E. Rhoades, to avoid paying for cocaine he had bought from Rhoades. The state presented testimony of Marissa Lynn Bragg, appellant's girlfriend, who witnessed the acts from which the charges arose. Bragg was granted immunity from prosecution in exchange for her testimony. Appellant asserts four points for reversal.

I

Pilcher argues that the trial court erred in denying his motion to dismiss for lack of venue in Saline County, where Pilcher was tried. The state stipulated that the shooting occurred in Grant County. Appellant cites Ark. Const. art. 2, § 10, which provides that the accused is entitled to a trial by jury in "the county in which the crime shall have been committed."

Pilcher met with Rhoades at Rhoades apartment in Saline County where Rhoades delivered one fourth ounce of cocaine "on front" to Pilcher. ¹ Pilcher and Bragg invited Rhoades to go with them to get the money to pay for the cocaine. The robbery was completed and the homicide occurred in Grant County and thereafter the body was returned to Saline County.

The relevant statute is Ark.Code Ann. § 16-88-108(c) (1987), which provides:

Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.

Under the statute, venue was proper in either Saline or Grant County. The delivery of the cocaine on credit and Pilcher's invitation to Rhoades to accompany him were acts "requisite to the consummation of the offense." Also, appellant and Bragg returned to Saline County and disposed of Rhoades's body in a trash dump. In Thrash v. State, 291 Ark. 575, 587, 726 S.W.2d 283, 287 (1987), we held that venue was proper in the county where appellant hatched the plan to commit the robbery-murder and to which the body was returned.

II

Prior to cross-examination of witness Marissa Bragg, the court limited defense counsel's inquiry regarding the identities of other individuals from whom Bragg and Pilcher had purchased drugs. Appellant argues that this line of questioning was an attempt to raise an inference that there may have been an accomplice to the homicide, from which the jury could infer that Bragg was biased and protecting some person(s) who might have actually committed the crime. Pilcher maintains this denial violated the Confrontation Clause and deprived him of the right to demonstrate that Bragg was biased.

The trial court ruled that the identity of the individuals was not relevant and, without a proper foundation, was merely a collateral issue. The trial court was correct. A.R.E. Rule 401, 402. Moreover, the effect of the intended testimony would have been to encourage the jurors to form an opinion based on supposition. See Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990); Maxwell v. State, 284 Ark. 501, 683 S.W.2d 908 (1985).

III

Pilcher next contends the trial court erred in refusing to declare Marissa Bragg an accomplice as a matter of law. Instead, the court instructed the jury to determine whether Bragg was an accomplice to the robbery and murder of Jeffery Rhoades.

An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages or coerces the other person to commit it, aids, agrees to aid or attempts to aid the other person in planning or committing it, or fails to make a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent it. Ark.Code Ann. § 5-2-403 (1987). It is the defendant's burden to prove that a witness is an accomplice whose testimony must be corroborated. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). A person's status as an accomplice is a mixed question of law and fact, and the issue should be submitted to the jury where there is evidence to support a jury's finding that the witness was an accomplice. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). The finding of the jury is binding unless the evidence shows conclusively that the witness was an accomplice. Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980).

The record reveals that Pilcher and Bragg, using Bragg's pickup truck, went to the apartment of Jeffery Rhoades where the cocaine purchase was instigated. They then led Rhoades (following on a motorcycle) through a remote area to a point near Tull in Grant County. Bragg testified the purpose of the trip was to lose...