Roleson v. State
| Decision Date | 11 October 1982 |
| Docket Number | No. CR,CR |
| Citation | 640 S.W.2d 113,277 Ark. 148 |
| Parties | Cecelia ROLESON, Appellant, v. STATE of Arkansas, Appellee. 82-12. |
| Court | Arkansas Supreme Court |
Rhine, Rhine & Young by Robert E. Young (court-appointed), Paragould, Davidson, Plastiras, Horne, Hollingsworth & Arnold by Walter Davidson, pro bono attorney, Little Rock, for Cecelia Roleson.
Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.
Cecelia Roleson was convicted of being an accomplice in the murder of Carl Lipe, which occurred around midnight, April 27, 1979, in rural Greene County, Arkansas. Cecelia Roleson and her former husband, Jerry Roleson, were convicted of the murder in a joint trial in 1980, but we reversed her conviction because of three procedural errors; we dismissed Jerry Roleson's conviction because of lack of evidence to corroborate the testimony of still another accomplice to the murder. Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981). On retrial, the jury convicted Cecelia Roleson of first degree murder and sentenced her to life imprisonment. On appeal she raises fifteen allegations of error. We find no prejudicial error was committed and affirm her conviction.
Carl Lipe was shot and killed on a rural road about midnight April 27, 1979. There were no witnesses to the murder. Lipe's wife, Rosa, the other accomplice to the murder, was the State's chief witness against Cecelia Roleson in both trials.
The Lipes became acquainted with the Rolesons when they moved to a house behind the Rolesons' grocery store in Marmaduke, Arkansas. Rosa Lipe testified that she began to confide in Cecelia, and that they became sexually intimate. She said that Cecelia wanted to set up a prostitution business and wanted the Lipes' help because they had once been in that business. Cecelia later decided that Carl Lipe would impede the plan and wanted him killed. Several times before Carl's murder, Cecelia gave Rosa poison to give to her husband, but Rosa said that she had only given it to him once.
On the day of the murder, a Friday, Cecelia told Rosa that she and her husband would visit the Lipes that night and said, "Tonight is the night." The Rolesons did visit the Lipes, and Cecelia, her stepchildren and Rosa went to Paragould and ate. The children were taken home and Rosa and Cecelia drove to the Lipes' home. When Cecelia saw that the Lipes' automobile was not there she said, "I've got to make a run." She and Rosa drove for a while and Cecelia stopped when she said that she saw a flashlight. Jerry Roleson got in the car, said he had just killed Carl Lipe and described how he had done it. The three drove to a bridge and threw out a pistol and Jerry's tennis shoes. Cecelia took Rosa home and told her to pretend to wait up for Carl and then call the police early that morning, which Rosa did.
Two turkey hunters found Lipe's body early the next morning. After questioning by the police, Rosa Lipe eventually agreed to cooperate and showed them the slough where the gun was thrown. A 380 Baretta was found and identified as the weapon that killed Lipe.
Bill Bushong, a Pepsi-Cola route man, testified that he had given the Baretta to Cecelia in exchange for an old car after she had repeatedly asked him to get a gun for her for protection. Bushong also testified that Cecelia indicated to him that she wanted Lipe killed because he was interfering with a prostitution business she hoped to start, which would involve herself, Rosa, and Jerry Roleson. Bushong said that Cecelia told him on the Wednesday after the murder that her husband had killed Lipe. Bushong also said that before the trial Cecelia had approached him, asking him to change his testimony. There was other evidence that Cecelia had been looking for a gun and was planning to become involved in prostitution. Mark Reed testified that Cecelia had asked him to perjure himself by saying that Cecelia had asked for the gun for Rosa. Both men admitted to having affairs with Cecelia Roleson.
The defense essentially maintained that either Rosa Lipe killed her husband or that someone besides the Rolesons killed him. Jerry Roleson testified that he and Cecelia did go to the Lipe home the night of the murder but that he left with Cecelia and Rosa. He said he last saw his wife and Rosa together about 9:30 p.m. when they took him home and that he went in and went to bed. He conceded that his wife had talked to him about setting up a prostitution ring, but denied that he was involved in the murder.
Cecelia Roleson denied any guilt but made some damaging admissions. She admitted that Bushong had given her the gun after she asked him for it several times. But she testified she was asking for it for Rosa. She did concede, however, that Bushong took an old car belonging to her shortly after he gave her the gun, just as Bushong testified. She admitted that she had lied on three occasions to police officers when first asked about the gun. She had denied any knowledge of a gun and denied she ever asked anyone for one. She also admitted she had talked to both her husband and Bushong about a prostitution ring.
The defense emphasized evidence that Carl Lipe's life insurance was increased approximately two weeks before the murder, from $5,000 to $16,500. There was also evidence the Lipes intended to buy the grocery store. Rosa testified that the Rolesons were having financial problems and that she and Carl offered to buy the store. The Rolesons were asking $8,000 and the Lipes gave them a down payment of $500.00.
The State's theory was that Cecelia Roleson masterminded the murder and there was evidence that Cecelia was a domineering and strong-willed person. Rosa Lipe testified she was afraid of Cecelia because she had threatened the safety of her child, and because she wanted to conceal their sexual relationship.
This is essentially the evidence viewed in the light most favorable to the State, which is the view that must be taken on appeal. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Obviously the jury resolved the issue of credibility against Cecelia Roleson and her witnesses and there is substantial and convincing evidence of her guilt.
The first argument on appeal is that Cecelia Roleson cannot be guilty as an accomplice since the charges against her husband, the principal, were dismissed. That was the common law rule. Ray v. State, 102 Ark. 594, 145 S.W. 881 (1912). The Arkansas law was drafted precisely to close this loophole in the law. Ark.Stat.Ann. § 41-304(2) (Repl.1977) reads:
In any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:
(2) the other person has not been charged with, prosecuted for, convicted of, or has been acquitted of, any offense or has been convicted of a different offense or degree of offense, based upon the conduct in question; ...
Roleson also argues she cannot be an accomplice since she was not present when the murder took place. That is simply not a correct statement of the law. Roleson cannot disclaim responsibility because she did not take part in each act that made up the whole crime. Andrews v. State, 262 Ark. 190, 555 S.W.2d 224 (1977). The statute does not contemplate that a person is an accomplice only if he is present at the scene of the crime. No such construction can be placed on the statute's plain language. An accomplice is defined in Ark.Stat.Ann. § 41-303 (Repl.1977) as:
(1) A person is an accomplice of another person in the commission of an offense, if with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense fails to make a proper effort to do so.
(2) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he
(a) solicits, advises, encourages or coerces another person to engage in the conduct causing the result; or
(b) aids, agrees to aid, or attempts to aid another person in planning or engaging in the conduct causing the result; or
(c) having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.
Three arguments of error by the defense may be answered together: the trial judge's refusal to allow the defense to inform the jury that Jerry Roleson's conviction was reversed and dismissed on appeal; his refusal to allow an instruction or any testimony or reference to that fact; and, his refusal to allow the defense to mention that Jerry Roleson was not currently charged. The judge was correct. It was irrelevant to Cecelia Roleson's trial or sentence that Jerry Roleson was released. Indeed it would prejudge the State's right to require Cecelia Roleson to account for her conduct. As Ark.Stat.Ann. § 41-304 (Repl.1977) states, it is no defense the other person has been acquitted.
It is argued that Rosa Lipe was improperly allowed to testify that Jerry Roleson told her, "... that was the hardest son of a bitch to kill he had ever killed," and "he told me that he had killed Carl." The objection is this was hearsay, which, of course, it was. But among the many exceptions to the rule that excludes hearsay is the admissibility of a statement made by a co-conspirator. Ark.Stat.Ann. § 28-1001, Rule 801(d)(2)(v) (Repl.1979). See Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).
It is argued that Bill Bushong was an accomplice to the murder and the jury should have been so instructed. He was not an accomplice. As we said in Burke v. State, 242 Ark. 368, 413 S.W.2d 646 (1967):
The test, generally applied...
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