Smith v. State, CACR 06-169 (Ark. App. 6/20/2007)
| Decision Date | 20 June 2007 |
| Docket Number | CACR 06-169. |
| Parties | RICKY L. SMITH, Appellant, v. STATE OF ARKANSAS, Appellee. |
| Court | Arkansas Court of Appeals |
Appeal from the Circuit Court of Jefferson County, [No. CR 05-107-1], Honorable Berlin C. Jones, Judge.
Affirmed.
Although he was charged with first-degree murder, a jury in Jefferson County found appellant Ricky L. Smith guilty of second-degree murder, and he was sentenced to twenty years in prison. Appellant appeals this conviction and sentence, arguing that he was denied the right to a speedy trial; that the evidence is not sufficient to support the jury's verdict; and that the trial court erred by excluding evidence showing the bias of witnesses. We affirm.
On March 14, 2003, the nude body of Nicole Sharp was found in a ditch off Hardin-Reed Road in Jefferson County. Upon autopsy, the forensic pathologist determined that strangulation was the cause of death. There was also evidence that Sharp's hands had been tied because her wrists were clenched and bore ligature marks and bruising.
The initial investigation was conducted by the Jefferson County Sheriff's Department. Appellant was charged with first-degree murder in Sharp's death, and he was arrested on March 21, 2003. On October 1, 2003, the State nolle prossed the charge. After further investigation by the Arkansas State Police, the State refiled the first-degree-murder charge against appellant on January 28, 2005, and the case was set for trial on June 21, 2005.
On April 4, 2005, appellant filed a motion to dismiss contending that his right to a speedy trial had been violated. The trial court held a hearing on the motion on May 17, 2005, and the trial court denied the motion by an order entered on May 19, 2005.
On June 8, 2005, the trial court entered an order continuing the jury trial to July 27, 2005. In this order, the trial court ruled that the time between the two trial settings, June 21 through July 27, was to be excluded for speedy-trial purposes.
Although appellant did not raise his sufficiency challenge until the second point on appeal, double jeopardy considerations require this court to consider this issue first. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). The State's first witness, Betty McVay, began her testimony by admitting that she was a drug addict, a prostitute, and a convicted felon. She testified that on the night of March 13, 2003, she and fellow prostitutes, Brenda Abeyta and the victim Nicole Sharp, were in the company of appellant and James "Jimbo" Scoggin at the home of Scoggin's mother. She and the other two women were there to "trick off," meaning to provide sexual favors in exchange for drugs, namely crack cocaine. McVay said that things turned ugly when appellant accused Sharp of pilfering some of his drugs. She testified that appellant said, "B****, you took some of my drugs," and then "he went at her." McVay became frightened and ran out of the bedroom. She heard yelling and then saw Scoggin and Abeyta exit the bedroom, followed by appellant. According to McVay, appellant said, "I think I killed the b****."
McVay further testified that she saw Sharp's dead body and that Scoggin wrapped her in a curtain. Appellant told McVay and Abeyta to get Sharp's clothing, and Sharp was placed in the back of appellant's truck. McVay rode with appellant and Scoggin to dispose of the body. Afterwards, they drove to a deer camp where appellant and Scoggin burned the curtain and Sharp's clothing. McVay testified that she never saw Sharp's hands tied. She also admitted that she had not been truthful when she first spoke with the police.
Brenda Abeyta also testified that she prostituted herself for drugs and had previous felony convictions. She saw appellant murder Sharp. She recalled that she and McVay were giving appellant oral sex when Sharp walked by a dresser that had crack cocaine on top of it. She said appellant told Sharp to give him back his drugs in a mean voice. Even though Sharp denied taking appellant's drugs, appellant grabbed Sharp by the throat and held her against a wall until she collapsed. Abeyta saw the body being wrapped, but she said that Scoggin took her home and that she was not present when the body was dropped off. Abeyta said that Sharp's hands had not been bound. She also admitted that she had been less than candid with the police when first questioned because she was scared of the appellant, who warned her that she would end up the same way as Sharp if she told the police.
Jimbo Scoggin, also a convicted felon, testified that they were all at his mother's house getting high, but he denied having sex with any of the women. He said he did not see the murder take place, but he testified that appellant admitted he had killed Sharp. Scoggin testified he knew something was wrong when the girls came out of the bedroom hollering and screaming. When appellant exited the bedroom, he told Scoggin he thought he had "killed the b****." Scoggin testified that he took Abeyta home and expected appellant and McVay to be gone when he returned. As they were not, Sharp's body was wrapped in a curtain taken from his mother's extra bedroom loaded into appellant's truck, and taken to Hardin-Reed Road. He also testified that they drove to an abandoned deer camp, where they smoked more crack cocaine and burned the curtain and Sharp's clothes. Scoggin acknowledged that he had told the police a number of stories about the events of that night, but only for the sake of his mother, who was a long-time employee at the Jefferson County Sheriff's Office. Like McVay and Abeyta, he said that Sharp had not been bound.
There was no forensic evidence linking appellant to the crime. The tire tracks found near Sharp's body did not match the tires on appellant's truck. Although semen was found on Sharp, there was not enough for a DNA analysis. With McVay's help, detectives with the state police found a burn pile at a deer camp, as described by McVay and Scoggin. However, its contents could not be identified. There was also testimony that Scoggin's mother had given a friend several sets of curtains and that one set had a panel missing.
Appellant argues that the foregoing evidence is not sufficient to sustain a finding of guilt. He contends that there is no physical evidence connecting him with the commission of the murder and that the testimony of the witnesses was inconsistent and conflicting.
A person commits murder in the second degree if the person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(1) (Repl. 2006). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Watson v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2006). We affirm a conviction if substantial evidence exists to support it. Gorman v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 6, 2006). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Cluck v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 6, 2006).
When the evidence is viewed in the appropriate light, there was eyewitness testimony that appellant committed the murder. Although there were some aspects of the testimony that were inconsistent, reconciling conflicts in the testimony and weighing evidence are matters within the exclusive province of the jury, and the jury's conclusion on credibility is binding on this court. Moore v. State, 58 Ark. App. 120, 947 S.W.2d 395 (1997). We cannot say there is no substantial evidence to support the verdict.
Turning now to appellant's speedy-trial argument, appellant contends that he was arrested on March 23, 2003, and that the one-year, speedy-trial period had expired by the time the first-degree-murder charge was refiled on January 28, 2005. Further, appellant contends that the period of delay between October 1, 2003, the date the first information was nolle prossed, and January 28, 2005, the day the charge was refiled, is not excluded from the speedy-trial calculation because the State did not have good cause to nolle prosse the charge.
Under Rule 28.1(c) of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months, unless there are periods of delay that are excluded under Rule 28.3. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1. Once a defendant establishes a prima facie case of a speedy-trial violation, i.e. that his trial took place outside the speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Yarbrough v. State, ___ Ark. ___, ___ S.W.3d ___ (May 10, 2007).
At the speedy-trial hearing held on May 17, 2005, the State conceded that appellant made a prima facie showing of a speedy-trial violation but argued that the delay was legally justified. According to the State, there were 192 days chargeable to the prosecution for the period...
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