Romes v. State

• Decision Date: 05 February 2004
• Docket Number: No. CR 02-1026.,CR 02-1026.
• Citation: 144 S.W.3d 750,356 Ark. 26
• Parties: Patrick Levern ROMES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

144 S.W.3d 750

356 Ark. 26

Patrick Levern ROMES v. STATE of Arkansas.

No. CR 02-1026.

Supreme Court of Arkansas.

February 5, 2004.

Appeal from the Circuit Court, Seventh Division, Pulaski County, John B. Plegge, J Cullen & Co., P.L.L.C., by: Tim Cullen, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brent P. Casper, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Patrick Levern Romes was convicted in the Pulaski County Circuit Court of capital murder and aggravated robbery and sentenced to concurrent terms of life imprisonment without parole and twenty years' imprisonment. He raises three points for reversal: (1) there was insufficient evidence to convict him of capital murder; (2) the trial court erred in denying his motion to dismiss for lack of speedy trial; and (3) the trial court erred in denying his motion to suppress his custodial statement. Our jurisdiction of this appeal is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). We find no error and affirm.

The record reflects that on the night of September 26, 2000, Dwain Brown and Art Caton were staying at the Sportsman's Inn in North Little Rock. Caton was in town waiting on a bus. When Brown got off work around 8:30 or 9:00 p.m., the two men spent the evening drinking beer and cognac in Brown's room. Around 1:00 or 2:00 a.m. the next morning, Caton left the room to get a soda from the machine at the front of the building. After he got the soda, he ran back to Brown's room and began beating on the door. When Brown opened the door, Caton ran inside and told Brown that somebody was behind him. A little while later, a knock came at the door, and Brown opened it and saw a man with a gun. The man said it was a "stick-up." Caton ran into the bathroom, and Brown gave the gunman the money he had in his pocket. The gunman then told Brown to tell his friend to come out of the bathroom, or he would shoot Brown. Brown did as he was told. When Caton came out, the two men started to get money out of Caton's room, which adjoined Brown's. While they were doing this, the gunman looked out the door, and Brown took the opportunity to push him out of the room. He then locked the door, and he and Caton went into the bathroom to hide.

At this point, according to Brown, Caton was screaming and going berserk. Brown attempted to calm him by reassuring him that the front door was locked. Caton started to go out of the bathroom, but Brown warned him not to go. Caton did not heed the warning; instead, he opened up the bathroom door and walked out, in a hunched or squatted-down manner. As soon as Caton went out of the bathroom, Brown heard a shot, and when he opened the bathroom door, he saw Caton lying on the floor. Brown then went and told the motel manager to call an ambulance. Caton subsequently died.

When officers from the North Little Rock Police Department arrived on the scene, Brown gave them a description of the gunman. He said the gunman was a black male in his mid-twenties and approximately five feet, nine inches tall, and was wearing a burgundy windbreaker, a black V-neck sweater, beige pants, and a red toboggan-style cap. Brown described the gun as a nickel-plated semiautomatic handgun. Brown subsequently identified Appellant's photograph out of a police lineup. He also identified Appellant as the perpetrator in court.

At the scene, police discovered a fingerprint and a palm print on a plexiglass window that had been busted out of Brown's room. Later that day, they transported the window to the Arkansas State Crime Laboratory, where a latent-print examiner ran the prints through the Automated Fingerprint Identification System (AFIS) and received a positive match for Appellant. Also on that same date, police went to Appellant's home to look for clothing that Appellant was wearing during the crimes. While there, they obtained consent to search the home from Appellant's father, and they found a sweater and a pair of pants matching Brown's description.

Appellant was subsequently arrested on September 27, 2000, on a theft warrant involving an unrelated report previously filed with the North Little Rock Police. He was brought to the police station, read his Miranda rights, and questioned about the theft. At some point during the interview, one of the detectives began questioning Appellant about the murder at the Sportsman's Inn. Appellant told the detective that he had gone to the Sportsman's Inn to collect twenty dollars from someone who owed it to him. While there, he said he was approached by Caton, who asked Appellant if he knew where he could get some drugs. Appellant sold Caton the drugs, and Caton paid for them with a hundred-dollar bill. Appellant figured that Caton must have had more money, so he went and got his friend Martin "Bo" Jacobs. Appellant and Jacobs then made a plan to "hit the lick," or commit a robbery. The plan was to rob Caton of both his money and the drugs that Appellant had just sold him.

According to Appellant, he approached Brown's room alone and knocked on the door. Once Brown opened the door, Appellant stepped inside and started asking Caton for his money. Jacobs then came in and proceeded to "draw down" on the victims. Brown dropped his money, ten dollars, but Caton would not drop his. Instead, Caton ran into the bathroom saying that he did not want to be shot. Appellant then told Caton to come out of the bathroom with the money. He then attempted to reassure Caton by telling him that, "Dude is not gonna shoot you dude just want the money." Caton told him his money was in his room. Appellant told Caton to come out and they would get the money from his room. Caton opened the bathroom door and threw his room key on the bed. Appellant then left the room and told Jacobs to "handle his business." At this point, either Brown or Caton shut the door, leaving Appellant and Jacobs outside. Appellant then began beating on the plexiglass window, trying to scare them. He stated that he beat on the window two or three times with the back of his fist. On the last hit, the window fell out. Jacobs then reached through the window. Appellant stated that he heard Caton hollering, "You little son-of-a-bitch" and then heard a gunshot. After that, Appellant fled the scene.

Based on the foregoing, Appellant was charged with capital murder, aggravated robbery, and theft of property. Prior to trial, the State waived the death penalty. Appellant was tried by a jury on May 22, 2002, and he was convicted of all three offenses. Appellant was automatically sentenced to life imprisonment without parole for the capital murder. The theft charged was then merged with the aggravated robbery, for which he was sentenced to twenty years' imprisonment. This appeal followed.

I. Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to convict him of capital murder, because it was circumstantial and did not exclude every reasonable hypothesis other than his guilt. We do not reach the merits of this point, because Appellant failed to preserve his argument below. This court has repeatedly held that Ark. R.Crim. P. Rule 33.1 requires that a motion for directed verdict be made at the close of the State's case and again at the close of all of the evidence. See, e.g., Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003); Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). This renewal is more than a matter of mere form; it goes to the substance of the evidence arrayed against the criminal defendant. Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Accordingly, the failure to challenge the sufficiency of the evidence at both the close of the State's case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence on appeal. See Doss, 351 Ark. 667, 97 S.W.3d 413; Cathey, 351 Ark. 464, 95 S.W.3d 753; Grady, 350 Ark. 160, 85 S.W.3d 531.

Here, the record reflects that after the State presented its case in chief, defense counsel made the following motion:

I'd move for a directed verdict, Your Honor, on the charge of capital murder. Testimony so far the key witness didn't see who shot who. There was testimony that he observed a gun in the hand of defendant but he never testified that he saw the defendant shoot anybody. And the defendant says he didn't shoot anybody through the statement he gave.

The trial court denied the motion, and instructed defense counsel to call his first witness. Thereafter, the defense presented testimony from Marilyn Larry and Appellant. Following Appellant's testimony, the defense rested, and the State announced that it had no rebuttal. The trial court then recessed the jury and went into chambers to discuss jury instructions with the attorneys. Defense counsel never renewed the directed-verdict motion. As such, Appellant's challenge to the sufficiency of the evidence is not preserved for our review.

II. Speedy Trial

Appellant argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. Pursuant to Ark. R.Crim. P. 28.1, the State is required to try a criminal defendant within twelve months, excluding any periods of delay authorized by Ark. R.Crim. P. 28.3. Moody v. Arkansas County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002); Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). This means that the accused must be tried within twelve months of the date the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Id. See also Ark. R.Crim. P. 28.2.

If a defendant is not brought to trial within the requisite time, Ark. R.Crim. P. 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same...