Rowe v. State

• Decision Date: 10 November 1980
• Docket Number: No. CR,CR
• Parties: Rodney Lee ROWE, Appellant, v. STATE of Arkansas, Appellee. 80-99.
• Court: Arkansas Supreme Court

Page 657

607 S.W.2d 657

271 Ark. 20

Rodney Lee ROWE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-99.

Supreme Court of Arkansas.

Nov. 10, 1980.

Lessenberry & Carpenter, by Thomas M. Carpenter, Little Rock, for appellant.

Steve Clark, Atty. Gen., by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Rodney Lee Rowe was found guilty of aggravated robbery and attempted capital murder of Mrs. Katie Cage and sentenced to terms of ten years for aggravated robbery and 30 years for attempted capital murder, as fixed by the jury. After trial on December 11, 1979, the trial judge ordered that the sentences run consecutively. The offenses were committed on the night of January 23, 1979, as Mrs. Cage was preparing to enter her dwelling house at 22 Tallyho Lane.

Appellant contends that the trial court erred in accepting the jury verdict with two convictions for one offense. He was charged in a two-count information with having committed the crime of aggravated robbery by holding a gun on Mrs. Katie Cage for the purpose of committing a theft and the crime of criminal attempt by purposely engaging in conduct constituting a substantial step towards the commission of capital murder of Mrs. Katie Cage during the course of, and in furtherance of, attempted robbery. Appellant admits that the evidence was sufficient to sustain the conviction on both charges, but argues that he could not legally be found guilty of both charges or sentenced on both. He contends that acceptance of the jury verdict violated the Arkansas statutes and the prohibition against double jeopardy contained in both the Fifth Amendment to the Constitution of the United States and Article II, § 8 of the Constitution of Arkansas.

Mrs. Katie Cage testified that she arrived at her home at about 11:30 p. m., got out of her car and walked to the back of the automobile in her driveway when she heard someone running toward her. Mrs. Cage said that she thought that this was one of the neighborhood joggers and kept walking toward her house, but when she realized that this person was coming toward her too fast and hard to be a jogger, she stopped at the edge of her driveway near the front steps of the house, looked around, heard someone say "help" and saw this person running frantically toward her with his hand extended. She thought that someone was chasing him, but when he came closer to her, she realized that no one was chasing him and that the cry had been "hey, hey, hey," instead of "help." The runner then came up to her with his hand "out." She tried to defend herself with her hand, and said, "You are not going to do this." When this person responded, "Oh, yes I am," she demanded that he get his hand off her and "get out of here." When she said this, she heard a gun go off and realized that she had been shot. She stepped back but did not fall. She felt that her assailant would shoot her again if she did not fall, so she fell to the ground and called out to her husband. As she was falling, her assailant grabbed her purse off her shoulder and ran. According to Mrs. Cage, she and her assailant had scuffled for about two minutes. She positively identified appellant as the assailant.

The information actually charged aggravated robbery under Ark.Stat.Ann. § 41-2102(1)(a) (Supp. 1979). The specific language was that appellant did "threaten to employ physical force upon Mrs. Katie Cage by holding a gun to her with the purpose of committing a theft from her and did have in his possession the following deadly weapon, to-wit: a pistol, * * *". This did not charge an offense under § 41-2102(1)(b). The criminal attempt charged under Ark.Stat.Ann. § 41-701(1)(b) (Repl. 1977) was that appellant "did unlawfully, feloniously attempt to commit an offense by purposely engaging in conduct constituting a substantial step in a course of conduct intended to culminate in the capital murder of Mrs. Katie Cage, in the course of and in furtherance of the attempted commission of robbery." Appellant waived formal arraignment and entered pleas of not guilty. Several pretrial motions were made but no objection to the information or to being put to trial on both counts was ever made. The state was never asked to elect to proceed on one count or the other and there was no motion to sever the charges for trial. No pretrial objection of the nature of those now made was ever asserted.

The jury was given instructions defining both offenses contained in the information. No objection was made by appellant to any of these instructions. No mention was made by the judge in his instructions to the jury that the offenses should be considered alternatively or that appellant should be sentenced on only one of the charges if it found him guilty of both. No such instruction was requested by appellant. The verdict forms which the judge submitted to the jury were described in one of the instructions given. They did not provide for consideration of the offense charged in the alternative or for the fixing of only one sentence. No objection was made and no alternate or substituted verdict form was requested by appellant. When the verdicts were returned, no objection was made. Thereafter, the judge asked if there was any legal reason why sentence should not be imposed at that time and appellant's attorney ¹ responded that there was not. The sentences were then pronounced, and the court ordered that they run consecutively. No objection was made, either to the sentences or their being made to run consecutively.

All of the arguments now advanced on appeal could have been raised in the trial court, but none of them were. Even though an alleged error is of constitutional proportion, we do not consider it for the first time on appeal. Shepherd v. State, 270 Ark. ---, 605 S.W.2d 414 (1980); Clark v. State, 264 Ark. 630, 573 S.W.2d 622.

Appellant contends that he could not be convicted or sentenced for both offenses because of the provisions of Ark.Stat.Ann. § 41-105(1)(e) (Repl. 1977). That subsection provides that a defendant may not be convicted of more than one offense if his conduct constitutes an offense defined as a continuing course of conduct and is uninterrupted unless the law provides that specific periods of such conduct constitute separate offenses. Appellant argues as if the italicized language was not even a part of the subsection on which he relies. Neither offense charged is defined as a continuing course of conduct. We might well dispose of this argument of appellant by pointing out that neither aggravated robbery nor attempted capital murder is defined as constituting a course of conduct, relying upon Britt v. State, 261 Ark. 488, 549 S.W.2d 84. We made it clear in Britt that a continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force. We emphasized the distinction made by Mr. Wharton in his treatise (Wharton's Criminal Procedure) which was pointed out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). According to that distinction, when the impulse is single but one charge lies, no matter how long the action may continue, if successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie; and the test is whether the individual acts are prohibited or the course of action they constitute; if the former, each act is punished separately, if the latter, there can be but one penalty. We made it clear that § 41-105(1)(e) did not change the common law rule.

Here two distinct impulses exist, according to the Britt-Blockburger test. When appellant approached Mrs. Cage outside of her home, carrying a deadly weapon, with hand outstretched, and she told him, "You are not going to do this," he responded "Oh, yes I am." When she resisted, saying, "Oh, no you're not," he shot her, took her purse and fled. Mrs. Cage testified the encounter lasted three minutes. The first impulse setting off a course of conduct, the aggravated robbery, occurred when appellant, armed with a deadly weapon, approached Mrs. Cage with hand outstretched. When Mrs. Cage refused to willingly turn over her purse, the second impulse, the impulse to use the weapon to overcome her resistance, was instituted. If Mrs. Cage had not resisted appellant, the second impulse may never have originated. Clearly two separate offenses were committed, each commencing at a distinct point in time as the result of a separate impulse. We cannot say that the aggravated robbery and the attempted murder were germinated by a single impulse, therefore the protection sought by appellant under § 41-105(1)(e) must be denied him. Appellant's attempt to distinguish Britt on the basis that more than one victim was involved there demonstrates a deficient reading of Britt. In that case, three offenses against two victims were charged. In two of the counts, it was alleged that one person was the victim of both a robbery and a battery.

Appellant contends that the trial court erred in failing to suppress Mrs. Cage's identification of him as the person who robbed and shot her. His entire argument is based upon the contention that the lineup procedure was improper. He says the issue is whether his participation in the lineup was an infringement upon his constitutional rights. Specifically, he asserts that he was denied his request for counsel in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article II, § 8 of the Arkansas Constitution.

Appellant is in error in his identification of the real issue in this case. The issue is whether the in-court identification of him, by the victim of the crime, was tainted by the lineup procedures. If it was, then the trial court should have suppressed it. If it was not, the identification testimony of Mrs. Cage was admissible. The state had the burden of...