Spears v. State, CR

• Decision Date: 14 November 1983
• Docket Number: No. CR,CR
• Parties: Leonard SPEARS, William Cassell and Joseph L. Bumgarner, Appellants, v. STATE of Arkansas, Appellee. 83-20.
• Court: Arkansas Supreme Court

Page 913

660 S.W.2d 913

280 Ark. 577

Leonard SPEARS, William Cassell and Joseph L. Bumgarner, Appellants, v. STATE of Arkansas, Appellee.

No. CR 83-20.

Supreme Court of Arkansas.

Nov. 14, 1983.

Rehearing Denied Dec. 19, 1983.

Kelley W. Webb, Trumann, and Michael Everett, Lepanto, and Larry R. Jennings, Harrisburg, for appellants.

Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

On April 2, 1979, Leonard Spears and William Cassell represented themselves as agents of the Federal Bureau of Investigation in order to gain entrance into the Poinsett County home of Frank and Margie Hyneman. Once inside they brandished pistols and robbed the Hynemans of a large amount of jewelry. Joseph Bumgarner and Bill Caplinger stood guard while the robbery took place. The four of them were charged, as habitual offenders, with aggravated robbery, burglary and conspiracy. Caplinger obtained a severance. Spears, Cassell and Bumgarner were each found guilty of aggravated robbery and burglary, but not of conspiracy. Each was sentenced to life imprisonment plus a fine of $15,000 for the aggravated robbery and thirty years imprisonment with another fine of $15,000 for the burglary. No reversible error is shown in the many arguments for reversal.

By the time of trial, July 16, 1982, Frank Hyneman had died. Margie Hyneman testified that at the time of the crime, they lived on a large farm near Trumann. Her husband was the chairman of the board of the First National Bank of Poinsett County and was accustomed to interviews by agents of the Federal Bureau of Investigation because a bank employee had recently embezzled funds. She testified that at about 6:30 p.m. on April 2, 1979, two men knocked on the front door and identified themselves to the servant as F.B.I. agents. Upon entering, they pulled out handguns and stated that they wanted the Hynemans' jewelry. Margie identified appellants Spears and Cassell as the two robbers. She stated they took Frank's wallet, which contained between $2,000 and $2,300 in cash and his Rolex watch with a diamond bezel and a diamond base with numerals. They took her eight carat solitaire diamond ring, her ring with a cluster of diamonds centered around a three carat diamond, her ring with an aquamarine stone circled by twenty diamonds and her drop necklace made from a group of diamonds. After taking the jewelry appellant Cassell opened an attache case which contained chains, gags, two-way radios and padlocks. The chains and padlocks were used to chain the Hynemans and their servant, Neelon Smith, to a refrigerator before appellants Spears and Cassell departed.

Patti Bumgarner, who was ruled to be a co-conspirator and an accomplice to the robbery and burglary as a matter of law, testified that Danny Owens, a night club owner from Memphis, told defendant Caplinger about the Hynemans' jewelry, that he had a purchaser for the eight carat solitaire diamond ring, and that he wanted defendant Caplinger to obtain that ring along with the other jewelry. Caplinger, in turn, contacted Patti's husband, appellant Joe Bumgarner, and asked him to obtain the jewelry. She testified that, in late 1978, a man from Illinois named Michael Anderson came to the Bumgarner residence, which was just outside Harrisburg, to visit Joe Bumgarner.

Patti stated that on March 9, 1979, the three appellants and defendant Caplinger, who was granted a severance, met at her home and discussed Danny Owens' request that they obtain the jewelry. Her testimony is abstracted as follows:

They were all discussing it. They discussed several ways of doing it, but they finally decided because there had been a deal over the Bank of Trumann with a guy named Brewer, they felt that if they went as FBI, then the Hynemans wouldn't think anything about it because it was an investigation into what Brewer had done. About a week before the real robbery they went through the ropes to figure out the robbery. Jeep Spears and Bill Cassell went out in Jaylene Parker's car and they knocked on the door. Joe was in our truck and Bill was in his truck. One was at Weona and another one at Payneway, and if they saw, like, police coming they could radio into the other two. They had walkie talkies for communication.

She stated that she purchased chains at a store in Bay and padlocks at a truckstop in Mississippi. They had two-way portable radios, including a police radio which allowed them to monitor police broadcasts. She placed all of these items in an attache case and placed it in Jaylene Parker's car.

During the last week in March, Patti saw the three appellants and defendant Caplinger leave her home for the purpose of robbing the Hynemans. They returned and said the servant had told them that the Hynemans were not home.

On April 2, at 6:30 p.m. the four of them again left the Bumgarner residence for the purpose of committing the burglary and robbery. They returned at about 7:30 p.m. with a bag full of jewelry which they gave to Patti and she hid at Bay. About a week later the three appellants and defendant Caplinger met and, in front of Patti, discussed the errors made during the robbery, the jewelry, and the amount of money they should receive from Danny Owens. They ultimately decided to sell the jewelry to whomever they chose but agreed to give Owens ten percent "off the top." Patti stated she then went to Bay, got the jewelry, gave it to her husband and defendant Caplinger, who both went to Memphis to meet Owens. Her husband, appellant Joe Bumgarner, returned home with $7,000 as his "first cut." She testified that there were more trips to Memphis and, as a result of other sales, her husband received more money.

Michael Anderson also testified in detail about the "Hillbilly Mafia." He stated that appellant Spears contacted him about committing robberies in Arkansas. He was an experienced criminal and stated that he, appellants Spears and Cassell, defendant Caplinger, along with two others, eventually committed a total of twenty-six armed robberies. He and appellant Spears drove from Peoria, Illinois to the Bumgarner residence where they met appellant Bumgarner and defendant Caplinger. They discussed various "jobs" in Arkansas. One job discussed "was about a gentleman and his wife who had a lot of jewelry, which was supposed to be worth, like, three hundred thousand dollars." After the discussion, Anderson and appellant Spears went back to Illinois. Later, Anderson brought some guns and handcuffs to the home of appellant Joe Bumgarner just outside of Harrisburg and immediately went back to Illinois where appellant Spears told him the couple's name was Hyneman and the husband was the president of a bank. Anderson testified that he detested appellant Bumgarner and, because of that, he told appellant Spears that he would not take part with appellant Bumgarner in the crimes against the Hynemans. He stated that he did not come to Arkansas with appellant Spears to commit the Hyneman robbery even though he loaned Spears a suit of clothes which Spears wore during the robbery. Anderson testified that when Spears returned to Illinois he described the robbery in detail.

Anderson testified that about a month later he saw appellant Cassell and his wife at a bar in Springfield, Illinois where Cassell told him details about the robbery. He observed Cassell's wife wearing a ring which Anderson identified from a picture as being Margie Hyneman's ring with the aquamarine stone in the center circled by diamonds. Anderson testified that appellant Cassell told him the ring was from the Hyneman robbery and they had trouble selling it so he just kept it for his wife. Anderson testified that he and separate defendant Caplinger later went to Memphis and picked up a sack from Danny Owens which contained $36,000 or $37,000 in one hundred dollar bills which came from the sale of the eight carat solitaire diamond ring.

Arthur Baldwin, a convicted felon serving a sentence in a federal penitentiary at the time of trial, testified that Danny Owens offered to sell him some large unmounted diamonds, one of them being as large as five carats, and a ring with a cluster of diamonds. He bought the ring which was identified as Margie Hyneman's. He testified that he had purchased a Rolex watch with diamonds from Jimmy Webster and that appellant Bumgarner then told him it was "hot."

The three appellants were found guilty of the burglary and the aggravated robbery but were not found guilty on the charge of conspiracy.

The appellants' first three assignments of error relate to the conspiracy charge. The burglary and aggravated robbery occurred on April 2, 1979. The appellants were charged with burglary and aggravated robbery on October 16, 1981. Then on May 26, 1982, more than three years after the burglary and aggravated robbery occurred, the information was amended to include the charge of criminal conspiracy. Appellants contend (1) the statute of limitations had run on the conspiracy charge; (2) it was error to allow Patti Bumgarner and Michael Anderson to testify about a past act and not something done in furtherance of the conspiracy; and (3) their statements were erroneously admitted before the conspiracy was proven by independent testimony.

We need not decide whether the statute of limitations had run on the charge of conspiracy because (1) the appellants were not found guilty of the charge; and (2) the admissibility of the testimony of Patti Bumgarner and Michael Anderson was not dependent upon a charge of conspiracy. Rule 801(d)(2)(v) of the Ark.Unif.Rules of Evid., Ark.Stat.Ann. § 28-1001 (Repl.1979) provides that testimony about an out-of-court statement by a co-conspirator of a party during the course and in furtherance of a conspiracy is not hearsay. The absence of a conspiracy charge simply has no bearing on the competency of a co-conspirator's testimony. Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).

App...