Robinson v. State

• Decision Date: 18 April 2002
• Docket Number: No. CR 01-351.,CR 01-351.
• Citation: 72 S.W.3d 827,348 Ark. 280
• Parties: Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas.
• Court: Arkansas Supreme Court

72 S.W.3d 827

348 Ark. 280

Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas.

No. CR 01-351.

Supreme Court of Arkansas.

April 18, 2002.

Lewellen & Associates, by Roy C. Lewellen, Marianna, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Judge.

Appellants Terrance and Tamagum "Tony" Robinson petition for review of the court of appeals's decision affirming the Robinsons' convictions on unlawful firearm discharge and felon-in-possession charges. This case involves a drive-by shooting. In the late evening of September 21, 1998, Willie and Peggy Gillum pulled into their driveway, when a dark sports car with its lights off stopped on the street by the driveway, and multiple shots were fired from the car at the Gillums. Peggy was uninjured in the shooting, but Willie sustained a gunshot wound to his abdomen. According to the Gillums' testimony at trial, Willie identified the occupants of the car as Terrance and Tony Robinson, who were sitting in the front and back passenger seats, and Marcus Turner, who was driving the car. The Robinson and Gillum families did not get along due to a previous homicide matter in which the Gillums' son, Shawn, was tried and acquitted of the murder of Darrell Robinson in 1997, and to another shooting in which Tony was tried for shooting the Gillums' twenty-year-old son, Broderick, for which Tony was acquitted a week prior to this shooting. There was evidence of great animosity between the families, and evidence that the Robinsons had threatened the Gillums.

Following the shooting and Willie's identification of the shooters, Terrance and Tony were arrested. Terrance was charged with unlawful discharge of a firearm from a motor vehicle and with felon-in-possession of a firearm, and Tony was charged with unlawful discharge of a firearm from a motor vehicle. The case went to trial on April 28 and 29, 1999. Terrance was convicted of both charges and sentenced to twenty-five years for the unlawful discharge of a firearm and six years for the felon-in-possession charge, the terms to run consecutively. Tony was convicted of the unlawful-discharge count and sentenced to eighteen years.

On May 10, 1999, Terrance and Tony filed motions for new trial in which they argued that they deserved a new trial because the State failed to disclose the names and addresses of two witnesses who could provide exculpatory evidence or testimony, because two new witnesses who were previously undiscoverable could provide exculpatory testimony and evidence regarding the shooting, and because the prosecutor engaged in misconduct in introducing a photograph from a rap-music cassette-tape cover with a picture of codefendant, Marcus Turner, whose case was continued, standing in front of a dark sports car.

The trial court entered its judgment and commitment order on May 24, 1999. Following this, it appears that there was some misunderstanding regarding the time frame in which the trial court was required to hear the motion for new trial, and the trial court entered an order on June 10, 1999, extending the time in which it would hold a hearing on the motion for new trial. The trial court held the motion hearing on July 8, 1999, and on that same day the court orally denied the motion for new trial. The defendants filed their notice of appeal on July 8, 1999, and the trial court entered its written order denying the new trial on July 23, 1999.

When we grant a petition for review pursuant to Ark. Sup.Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

I. Motion for Directed Verdict

First, the Robinsons argue that the testimony elicited from Mr. and Mrs. Gillum, with Mr. Gillum identifying the Robinsons as the shooters, was inconsistent and, thus, not credible. In addition, the police investigator testified that the description of the car given at the scene was inconsistent with the car ultimately targeted as the one used in the shooting. The Robinsons argue that these discrepancies, therefore, rendered the jury verdict unreliable, indicating that no reasonable person could find that the State proved its case. The trial court ruled that these were issues of credibility for the jury to determine, and that the jury could find substantial evidence based on the victims' testimony alone.

We cannot reach the merits of the Robinsons' argument because this issue is not preserved for appeal. The Robinsons' renewed motion for directed verdict was not made by defense counsel until after the trial court read the jury instructions. Our rule provides that when there has been a trial by jury, a renewal of a previous motion for a directed verdict at the close of all the evidence preserves the issue of insufficient evidence for appeal. Ark. R.Crim. P. 33.1; see also, Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998); Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). We have previously stated that this renewal is more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483, (1994). However, after the jury has been charged, it is too late to consider a motion to direct a verdict. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). We have held that a trial court's decision to consider and then deny a motion for a directed verdict made after the jury had been instructed, but before closing arguments, did not comply with the rule requiring that the motion be renewed at the close of the case and was therefore "too late." Claiborne v. State, 319 Ark. 602, 603, 892 S.W.2d 511, 512 (1995). Here, the record and abstract clearly show that defense counsel did not renew the motion for directed verdict until after the trial court read the jury instructions. Therefore, according to our case law and court rules, the motion was untimely, and we cannot consider the issue here.

II. Admission of Photograph

In their next point on appeal, the Robinsons argue that the trial court erred in admitting the picture from a music group's cassette-tape cover depicting Marcus Turner and others standing next to a black sports car. The defense objected to its admission, arguing that a picture of Turner standing next to a dark sports car was irrelevant in this case against the Robinsons. The prosecution argued that it was highly relevant because Mr. Gillum testified that Turner was the driver of the dark car, and that the picture depicts Turner standing next to a dark sports car. The trial judge allowed the picture to be admitted into evidence. On appeal, the Robinsons continue to argue that the trial court erred in admitting the evidence because a picture of Turner standing next to a dark sports car was irrelevant in this case against them. As they argued below, the Robinsons continue to argue that other than the picture, there is no evidence that Turner owned that car, and that even if he did, it is of no consequence in this case.

The court of appeals refused to address this issue on appeal because the Robinsons did not include a photocopy of the picture in the abstract, although a description of the picture was abstracted. We agree with the court of appeals and also refuse to reach the issue because our court rules require a photocopy of pictures and other similar exhibits to be included in the abstract.

Arkansas Supreme Court Rule 4-2(a)(6) discusses the abstracting rules, including those for photographs, stating in pertinent part:

Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion.

Ark. Sup.Ct. R. 4-2(a)(6). (Emphasis added.) Whether photographs and such exhibits must be reproduced for each copy of the brief filed with the court rests on the word "which" in the above sentence. This rule is a classic example of the importance of using the exact word to describe the meaning to be conveyed and highlights the subtle difference between "which" and "that" in our language usage. Both "which" and "that" are relative pronouns, whose function is to introduce subordinate clauses. See generally William Strunk, Jr., and E.B. White, The Elements of Style 4-5 (New York: Macmillan Publishing Company, 1979). The difference between the two is based on whether the modified clause is restrictive or nonrestrictive—that is, whether the added information is necessary to describe the modified object (restrictive) or unnecessary and added merely for additional information (nonrestrictive). Id. In Rule 4-2(a)(6), "which" introduces a nonrestrictive subordinate clause adding additional information about photographs and other similar exhibits, and indicates that these types of exhibits cannot be abstracted in words. This explains why a waiver by the court is required when a party wants to abstract the exhibit in words rather than by photocopy. In contrast, had the rule used "that" for "which" and stated, "Whenever a map, plat, photograph, or other similar exhibit that cannot be abstracted in words ...," the subordinate clause introduced by "that" would instead add necessary information describing a particular picture that could be abstracted in words, rather than generally describing all such exhibits, which cannot be described in words. However, by using the word "which" in the rule instead indicates that these exhibits are incapable of being abstracted in words and, therefore, must be reproduced unless the court specifically...