Ray v. State

• Court: Arkansas Supreme Court
• Writing for the Court: ROBERT L. BROWN
• Citation: Ray v. State , 2009 Ark. 521, 357 S.W.3d 872 (Ark. 2009)
• Decision Date: 29 October 2009
• Docket Number: No. CR 09–99.,CR 09–99.
• Parties: Shannon David RAY, Appellant, v. STATE of Arkansas, Appellee.

2009 Ark. 521

357 S.W.3d 872

Shannon David RAY, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 09–99.

Supreme Court of Arkansas.

Oct. 29, 2009.

Dyer and Jones, by: F. Parker Jones III, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

Appellant Shannon David Ray appeals from his convictions for two counts of aggravated robbery, four counts of aggravated assault, attempted murder, possession of a firearm by certain persons, and discharge of a firearm from a car and his sentence of life in prison as a habitual offender. He asserts five points on appeal. We affirm.

On March 23, 2007, at around 3:30 p.m., Shannon Ray and Brooke Robinson decided to rob the Hibbett Sports sporting-goods store in Arkadelphia. Robinson waited outside in a running car, while Ray went into the store and pretended to shop for clothing. After picking out several items of merchandise with the help of store employees, Ray stated that he needed to get his debit card from his car and left the store. He returned several minutes later with a sawed-off shotgun and said to James Richards, the store's assistant manager: “You already know what it is. This is a robbery.” Ray then gathered up the store's customers at gunpoint and ordered them to lie down in front of the counter.

After everyone was on the ground, Ray ordered Richards to put the merchandise he had picked out into bags. While Richards was complying, other people, including Richards's wife and five-month-old son, entered the store. Ray forced the newcomers to lie down with the rest of the store's customers and said: “There's a baby in the store. I don't want to hurt no one, but I will for my life.” When Richards had finished placing the merchandise into bags, Ray made Richards empty the money from the cash register into another bag. Ray also ordered the customers on the ground to place their wallets and money on the ground. Ray gathered up his loot and left the store.

Jennifer Haley, the store manager, was in the back of the store when Ray came in the second time. When she realized that Ray was robbing the store, she slipped out the back door and went to the neighboring store in the strip mall, Rent–A–Center, to call the police. There, Haley and Brandon McKim, a Rent–A–Center employee, saw Ray walk in front of the Rent–A–Center's front window. When Haley confirmed that Ray was the man who had robbed Hibbett Sports, McKim left the Rent–A–Center and chased after Ray. When Ray noticed McKim chasing after him, he ran around the corner of the building to where Robinson was waiting with the getaway car. Ray got in the car, and the car pulled around the corner and stopped in front of McKim who was, at that point, standing in front of a Chinese food restaurant that was also in the strip mall. Ray pointed the shotgun out the window of the car and fired at McKim. The shotgun blast missed McKim but shattered the glass door of the Chinese restaurant. The car then sped off. Shortly after the robbery, Ray and Robinson were stopped by the police on Interstate 30 and arrested.

The car Robinson was driving was transported to the Arkadelphia Police Department's evidence garage. There, in the course of an inventory search of the vehicle, police discovered evidence of the robbery in the vehicle's trunk. This evidence included, among other things, a sawed-off shotgun and three Hibbett Sports bags containing merchandise and cash. Prior to trial, Ray moved to suppress the evidence recovered from the trunk of the vehicle and asserted that the police had failed to follow the necessary guidelines for inventory searches and that the search had been conducted without his consent. A hearing was held on the motion, and the motion was denied.

Ray was tried by a jury on August 27, 2008, and convicted and sentenced as is already set out in this opinion.

On appeal, Ray first challenges the sufficiency of the evidence with regard to his convictions for aggravated robbery and aggravated assault. He notes that two persons, Cedrick Kousok and James Richards, were the alleged victims of both aggravated assault and aggravated robbery. He appears to contend that because the crimes of aggravated robbery and aggravated assault require proof of different conduct, the same person cannot be a victim of both crimes based on the same course of conduct by the defendant.

Before considering the merits of this point on appeal, we must first determine whether the issue was properly preserved for appellate review. Maxwell v. State, 359 Ark. 335, 197 S.W.3d 442 (2004). This court treats a motion for directed verdict on appeal as a challenge to the sufficiency of the evidence. Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed verdict at both the conclusion of the State's case and at the conclusion of all of the evidence. Ark. R.Crim. P. 33.1 (2008). Arguments made in support of a sufficiency-of-the-evidence challenge that were not made in support of a motion for directed verdict at trial are not preserved for appeal. See, e.g., Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008); Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005). It is well settled that arguments not raised at trial will not be addressed for the first time on appeal. See, e.g., Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).

At the close of the State's evidence, Ray's counsel moved for a directed verdict, arguing the following with respect to the charges of aggravated assault and aggravated robbery:

All right, count I, aggravated robbery, challenge the sufficiency of the evidence that he inflicted or attempted to inflict death or serious physical injury upon another person, in respect to any of the people who lost property. So I believe they failed to meet the burden on that one.

....

In respect to the aggravated assault, we assert that they failed to—we challenge the sufficiency of the evidence in respect to the elements by Arkansas Code Annotated 5–13–204. There's multiple charges of aggravated assault and aggravated robbery. I believe I've already covered aggravated robbery. They did not identify a victim for each of these charges, each of these counts. And for each of these counts, and I'm speaking to all the counts that he's charged with, if they failed to identify a victim, they must necessarily fail.

Ray renewed this motion for directed verdict at the close of all of the evidence without raising any additional issues.

What is clear to this court is that at trial, Ray raised a general challenge to the sufficiency of the evidence with regard to the aggravated-robbery charges and a specific challenge that the State had failed to identify victims with respect to the aggravated-assault charges. On appeal, however, he claims that a person cannot be a victim of both aggravated robbery and aggravated assault, based on the same conduct of the defendant. This argument was not presented to the circuit judge in support of the motion for directed verdict. Accordingly, it has not been preserved for this court's review.¹ See, e.g., Rounsaville, 372 Ark. at 256, 273 S.W.3d at 490.

For his second point, Ray asserts that the circuit judge erred by denying his motion to suppress the pretrial identifications of him by six witnesses because the photographic lineups were unduly suggestive and violated his due-process rights. Ray further claims that the suggestive pretrial identifications tainted any subsequent identifications of him at trial. Specifically, he contends that the pretrial identifications were unduly suggestive because Ray was taken to the crime scene in the back of a police car on the day of the robbery where one or more witnesses saw him and because one other witness knew another man included in the photographic lineup with Ray.

To prove suggestiveness, Ray called two witnesses, James and Michelle Richards, to the stand at the pretrial hearing on his motion to suppress. James Richards testified that he saw Ray in the back of a police car in front of Hibbett Sports after the robbery. He stated that the police car was parked in front of Hibbett Sports for about a minute before driving away. According to Richards, Ray was in the store for fifteen to twenty minutes during the robbery. Five days after the robbery, Richards identified Ray in a photographic lineup without any reluctancy or hesitancy. He stated that he recognized Ray immediately and would have recognized him regardless of the fact that he had seen him briefly in the back of the police car after the robbery.

Michelle Richards testified that she had heard that police officers had brought Ray back to the store after the robbery but that she had not seen it herself. She stated that she participated in a photographic lineup five days after the robbery and that she recognized two people in the lineup, Ray and a former high school classmate. She added that she was absolutely sure that Ray was the person she saw in Hibbett Sports. At the conclusion of the hearing, the circuit judge made the following ruling:

Based upon the testimony, Mr. Richards was in the store. The defendant came in on 2 different occasions. He said he observed him from 10 to 20 minutes. That he had a big band-aid on his neck, and 5 days later, he saw a photo lineup. At the store, Ms. Richards didn't see the defendant in the police car at Hibbett's, and I'm going to deny the defense's motion to suppress the lineup.

At trial, at least six witnesses, including the Richardses, identified Ray. For each of these witnesses, the State additionally offered into evidence the fact that they had identified Ray in a pretrial photographic lineup. Ray's attorney objected to each in-court identification and the introduction of each pretrial identification.

This court has held that a pretrial identification violates the Due Process Clause when there are...