Riley v. State

• Decision Date: 23 September 2009
• Docket Number: No. CA CR 08–1250.,CA CR 08–1250.
• Parties: Kenneth RILEY, Appellant,v.STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2009 Ark. App. 613

343 S.W.3d 327

Kenneth RILEY, Appellant,

v.STATE of Arkansas, Appellee.

No. CA CR 08–1250.

Court of Appeals of Arkansas.

Sept. 23, 2009.

Harrelson Law Firm, P.A., by Jeff Harrelson, Texarkana, for appellant.Dustin McDaniel, Att'y Gen. by David R. Raupp, Sr. Ass't Att'y Gen., and Stella Phillips, Ass't Att'y Gen., for appellee.COURTNEY HUDSON HENRY, Judge.

A [Ark. App. 1] jury in Miller County found appellant Kenneth Riley guilty of aggravated robbery, for which he was sentenced as an habitual offender to a term of eighty years in prison. For reversal, appellant contends that the trial court erred in overruling his Batson objection to the prosecutor's use of a peremptory strike to exclude an African–American woman from the jury. He also argues that the State did not present sufficient evidence to corroborate the testimony of the two accomplices. We affirm.¹

At 12:19 a.m. on October 1, 2007, George Riley, who is appellant's nephew, and Timothy Holland used a handgun to rob an E–Z Mart convenience store in Texarkana, [Ark. App. 2] Texas. Shortly after 2:00 a.m. on that same morning, the two young men committed another aggravated robbery of the On–the–Run convenience store in Texarkana, Arkansas. The prosecuting attorney in Miller County charged appellant as an accomplice to the aggravated robbery of the On–the–Run store.

The evidence at trial disclosed that, moments after the On–the–Run robbery, Officer David Easley of the Texarkana, Arkansas, Police Department initiated a stop of a vehicle being driven by appellant in a parking lot within 100 yards of the convenience store. As the vehicle slowed, Riley and Holland exited the vehicle and fled on foot. Officer Ron Hudson, also of the Texarkana Police Department, pursued the two young men. Hudson apprehended Riley, who was entangled in a fence, but Holland escaped. Based on information provided by Riley, the police located the handgun used in the robberies in the area where the two men had fled from the officers.

The police retrieved videos from the two convenience stores' surveillance cameras that captured footage of both robberies. The videotape from the E–Z Mart depicts appellant entering the store ten minutes prior to the robbery. The videotape from On–the–Run reveals that appellant entered the store two times immediately before the robbery. On both occasions, appellant purchased a cigar. In addition, the vehicle driven by appellant contained articles of clothing worn by Riley and Holland in the E–Z Mart robbery along with cigarettes that they stole during the commission of that robbery.

[Ark. App. 3] Holland testified that appellant drove Holland and Riley from Little Rock to Texarkana and that they had been there for two weeks prior to the robberies. Holland said that appellant gave him the handgun to rob the stores and that the three of them agreed to share the money obtained in the robberies. Holland further testified that appellant entered the On–the–Run store before the robbery to make sure that only one employee was working that morning. Riley confirmed that appellant gave Holland the gun and that appellant conducted reconnaissance of the On–the–Run store before they robbed it.

Although designated as his second point on appeal, we are obligated to address appellant's argument challenging the sufficiency of the evidence prior to discussing other allegations of error in order to protect appellant's right against double jeopardy. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005). When the sufficiency of the evidence is challenged on appeal, the test is whether there is substantial evidence to support the verdict. Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). We also view the evidence in the light most favorable to the State and consider only evidence that supports the verdict. Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2003).

In Arkansas, no distinction is made between principals and accomplices insofar as criminal liability is concerned. Bienemy v. State, 374 Ark. 232, 287 S.W.3d 551 (2008). When two or more persons assist one another in the commission of a crime, each is an [Ark. App. 4] accomplice and criminally liable for the conduct of the others. Id. However, when accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based upon the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark.Code Ann. § 16–89–111(e)(1)(A) (Repl.2005). Corroborating evidence is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Ark.Code Ann. § 16–89–111(e)(1)(B). The corroboration must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001). The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001).

The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice's testimony. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). The presence of an accused in proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).

[Ark. App. 5] Here, the record discloses that appellant entered both convenience stores shortly before the robberies occurred. Moments after the On–the–Run robbery, the police discovered appellant driving a vehicle with passengers who committed the robbery. This vehicle contained items stolen in the first robbery and clothing worn by Riley and Holland during the first robbery. These facts, when viewed as a whole, place appellant in close proximity to the crime and in association with those who committed the robbery in a manner strongly suggestive of joint participation. Thus, aside from the testimony of the accomplices, the State's proof connects appellant with the commission of the On–the–Run robbery, and we hold that substantial evidence supports the verdict of guilt.

We now turn to appellant's argument that the trial court erred by overruling his Batson objection to the prosecutor's use of a peremptory challenge to exclude an African American from the jury. The record discloses that the prosecutor used one of its challenges to strike Brittany Owens, a nineteen-year-old African–American woman. At the time of the strike, eleven jurors had been seated. Appellant raised an objection because Owens was the only African American drawn from the venire for possible selection as a juror. The court noted that there were African Americans in the venire whom the court excluded for cause, while others remained in the jury pool. The prosecutor then proceeded to explain the basis for its decision to strike Owens. The prosecutor stated that Owens had not completed a juror questionnaire and that she was young and soft-spoken. He stated his impression that she lacked the maturity to decide a case that carried the potential for a long prison sentence. [Ark. App. 6] The prosecutor also noted that Owens was not enrolled in school or employed, that she was not forthcoming with her answers, and that she acted as though she did not want to be there. The prosecutor further commented that she was the same age as the accomplices who were going to testify on behalf of the State. Appellant responded, generally, that the prosecutor did not present valid, race-neutral reasons for exercising the strike. However, the trial court accepted the prosecutor's explanations as being race neutral and found no discriminatory intent.

Immediately following the trial court's ruling, the prosecutor informed the trial court that the accomplices were not only the same age as Owens but that the accomplices were also African Americans. Upon inquiry from the court, the prosecutor acknowledged that Owens and the accomplices' shared race was a factor in his decision to use the peremptory strike. Appellant made no further argument, and after considering this explanation and the other reasons offered by the prosecutor, the trial court again overruled appellant's Batson objection. No more African Americans' names were drawn, and the jury ultimately selected was composed only of Caucasians.

On appeal, appellant argues that some of the prosecutor's reasons for striking Owens appear to be race neutral but that discriminatory intent was shown by the prosecutor's statement that he also excluded Owens because she was of the same race as the accomplices. Appellant further argues that improper motivation was evident because the prosecutor failed to consistently apply the stated reasons for striking Owens to other jurors. In this regard, [Ark. App. 7] appellant maintains that, although the prosecutor struck Owens because she had not completed a juror questionnaire, the prosecutor did not strike a Caucasian juror who also had not completed a questionnaire.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the State from striking a juror solely on the basis of race. Striking even one juror for a racially motivated reason violates the Equal Protection...