Smith v. State

• Decision Date: 18 February 2010
• Docket Number: No. CR 09–930.,CR 09–930.
• Citation: Smith v. State, 2010 Ark. 75, 364 S.W.3d 443 (Ark. 2010)
• Parties: Ricky Dale SMITH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 75

364 S.W.3d 443

Ricky Dale SMITH, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 09–930.

Supreme Court of Arkansas.

Feb. 18, 2010.

Lea Ellen Fowler, North Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by Brad Newman, Ass't Att'y Gen., for appellee.

JIM GUNTER, Justice.

AppellantRicky Dale Smith was convicted of capital murder in violation of Ark.Code Ann. § 5–10–101(Supp.2009), for which he was sentenced to life in prison without the possibility of parole, and four counts of committing a terroristic act in violation of Ark.Code Ann. § 5–13–310(Supp.2009), for which he was sentenced to fifty years' imprisonment on each count, all sentences to run concurrent.Our jurisdiction is pursuant to Rule 1–2(a)(2) of the Rules of the Arkansas Supreme Court.Appellant asserts two points on appeal: (1) that the trial court abused its discretion in allowing into evidence testimony regarding two subsequent aggravated robberies in which appellant was an alleged participant, and (2) that the trial court abused its discretion in allowing evidence of a subsequent attempted homicide in which appellant was implicated.We affirm on both points.

Appellant is one of three defendants, along with Kevin Banks and Marcus Smith, who were charged with the December 2007 drive-by home shooting that resulted in the death of six-year-old Kamya Weathersby.The home on Martin Luther King Boulevard in Little Rock was shot at forty-eight times, and seven of those shots hit Kamya, who at the time of the shooting was in her bed.As a result of her injuries, Kamya died the next day.The State's theory of the case was that Antoine Jones, who lived in the house with Kamya's mother, was the intended victim due to his knowledge regarding an earlier murder committed by Banks.At the time of the shooting, Antoine was present in the house as well as Kamya's mother, LaShandra Washington, and her two other daughters, Aries Jones and Jasriea Vick.

Prior to trial, the State filed notice of its intention to introduce evidence under Ark. R. Evid. 404(b) relating to two subsequent aggravated robberies, one in Little Rock and one in North Little Rock, in which appellant was an alleged participant and a separate drive-by shooting incident that occurred five months after Kamya's death in which appellant allegedly fired several rounds at the surviving victims as they were exiting their vehicle.Appellant filed an objection to the State's intention to admit this additional evidence.The court held a hearing and ruled that the State's witnesses could refer to appellant's alleged participation in the subsequent robberies to provide a foundation for the relationship between that witness and appellant to explain why appellant would confess to murder.The court noted that the State was not to go into detail regarding the robberies.

Appellant's trial began on January 12, 2009.During the State's opening statement, appellant renewed his objection to the admissibility of any evidence regarding the subsequent drive-by shooting.The court overruled the objection but noted it as a continuing.Thereafter, Washington and Jones testified that on May 12, 2008, they along with their infant daughter drove to their apartment in North Little Rock.Upon exiting their vehicle, they were fired upon numerous times, causing extensive damage to the vehicle.Neither Washington nor Jones saw the shooters.

Janice Brock, who lived nearby, testified that she took her dog out to check her mail when she heard shots and saw a car coming from the direction of the sound.Even though it was dark, the car did not have its lights on, and it almost hit her dog.She jumped in her vehicle and followed the car but lost sight of it when it ran a stop sign.When she arrived at the intersection of 47th Street and Pike, she saw that the car she had been pursuing had hit another car.The only person at the scene was the driver of the other vehicle.

Rozeline Jenkins testified that she lived at the intersection of 47th Street and Pike and that she ran out onto her front porch when she heard a crash.She stated that she saw a woman driving one car and a man exiting another car.The man was carrying a long rifle similar to one she had seen in a military training video.The man ran into her yard before running off into a different direction.Jenkins testified that the man was wearing dark clothing and had something tied around his head.Jenkins called the police, and eventually gave a statement.She was shown a photo line-up, and she indicated appellant as the perpetrator.

Over objections from appellant, the trial court also allowed fourteen-year-old Larry Taylor to testify that on May 19, 2008, several months after the drive-by shooting that killed Kamya, he and appellant robbed two gas stations.Taylor stated that he had become associated with appellant prior to the robberies and that appellant warned him of an ongoing “beef” with Antoine Jones.Taylor testified that appellant admitted he had tried to kill Jones in December 2007 but had killed Kamya instead.According to Taylor, appellant stated that he and his brothers had been watching the house for a week prior to the shooting.Taylor also testified that appellant described a separate attempt to kill Jones where after shooting at him, appellant drove away from the scene, wrecked the car, and fled on foot.

During the investigation of the drive-by shooting and car crash, the following evidence was revealed: the abandoned car at the crash scene was a maroon Nissan Maxima owned by appellant's father; an inventory search of the Maxima produced a .45–caliber pistol, a clip, and a leather holster; spent .45–caliber casings and sixteen 7.62–by–39 millimeter casings were found at the North Little Rock drive-by scene; ballistics established that the 7.62 casings found at the North Little Rock crime scene were shot from the same weapon that had fired the 7.62 casings found at the Little Rock murder scene; the Maxima's airbags had deployed, and scientific testing established that appellant's DNA was found on the driver's side airbag; and paperwork in appellant's name was found in the front seat of the Maxima.Law enforcement also searched appellant's home and found one nine-millimeter live round, five 7.62–by–39 live rounds, and an empty 7.62 ammunition box in appellant's bedroom.

Appellant makes two arguments on appeal, both of which rely on Rule 404(b).The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, which this court will not disturb on appeal absent a showing of manifest abuse.Kelley v. State,2009 Ark. 389, 327 S.W.3d 373.Rule 404(b) provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Ark. R. Evid. 404(b)(2009).Evidence offered under Rule 404(b) must be independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence.Kelley, supra.In other words, the prior bad act must be independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal.Id.Evidence may be independently relevant if it shows motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.SeeBragg v. State,328 Ark. 613, 946 S.W.2d 654(1997).Evidence admitted pursuant to 404(b) must prove to not be too separated in time, making the evidence unduly remote.Nelson v. State,365 Ark. 314, 229 S.W.3d 35(2006).The trial judge is given sound discretion over the matter of remoteness, and will be overturned only when it is clear that the questioned evidence has no connection with any issue in the case.Id.

In addition, we have held that evidence may be relevant in connection with other facts to form a link in the chain of evidence necessary to support a party's contention.Barrett v. State,354 Ark. 187, 119 S.W.3d 485(2003).Furthermore, testimony can be relevant if it provides the necessary context for other evidence.Gaines v. State,340 Ark. 99, 8 S.W.3d 5472000).However, it is important to note that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.Ark. R. Evid. 403(2009).

For his first point on appeal, appellant maintains that the circuit court abused its discretion in allowing Larry Taylor to testify that he and appellant committed two aggravated robberies several months after the murder of Kamya Weathersby.Appellant contends that the evidence was not proper under Rule 404(b) because its only purpose was to show that appellant was a criminal and more than likely to have been involved in Kamya's murder; that the testimony was not independently relevant; and that the danger of unfair prejudice outweighed any probative value of the testimony.The State responds, noting that appellant does not challenge allowing Taylor to testify regarding the confession appellant allegedly made but only Taylor's reference to appellant's alleged participation in the two robberies.The State asserts that Taylor's testimony about the robberies was relevant and necessary to explain why appellant would confide in Taylor about the shooting that resultedin Kamya's death; that Taylor's testimony was admissible under Rule 404(b) to show appellant's motive, opportunity, intent, preparation, plan, knowledge, and identity with regard to the shooting of Kamya; and that the testimony was relevant to establish context for Taylor's statements.

Taylor's testimony provided details corroborating other evidence that was presented at the...