Sweet v. State

• Decision Date: 27 January 2011
• Docket Number: No. CR 10–676.,CR 10–676.
• Citation: 370 S.W.3d 510,2011 Ark. 20
• Parties: David Junior SWEET, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 20

370 S.W.3d 510

David Junior SWEET, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–676.

Supreme Court of Arkansas.

Jan. 27, 2011.

Kimberly Boling Bibb, Paragould, for appellant.

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

JIM GUNTER, Justice.

A jury in Crawford County convicted appellant David Sweet of aggravated robbery and kidnapping, and he was sentenced to two consecutive terms of life imprisonment. Our jurisdiction is pursuant to Rule 1–2(a)(2) of the Arkansas Rules of the Supreme Court.

Appellant asserts six arguments on appeal: (1) that the circuit court erred in denying his proffer of jury instructions on the offenses of robbery and false imprisonment; (2) that the circuit court erred in allowing into evidence a videotape and several photographs; (3) that the circuit court erred in refusing to suppress appellant's custodial statements; (4) that the photo lineup provided to the victim was unduly suggestive and created a substantial possibility of misidentification; (5) that the circuit court abused its discretion in denying appellant's request for a mistrial; and (6) that the circuit court erred in denying appellant's motion for directed verdict because there was insufficient evidence to support the aggravated robbery and kidnapping charges. We affirm.

On April 29, 2009, at approximately 5 p.m., Elizabeth Bitzelberger was the last employee to leave the medical clinic in Mulberry, Arkansas. As she was exiting through the back door of the clinic, a man came at her with a knife. He forced Bitzelberger back into the clinic and used duct tape to cover her mouth and bind her feet and hands. He then demanded money. The man took six dollars out of Bitzelberger's purse and $102.60 out of the cash drawer in the office of the clinic. He then placed Bitzelberger in one of the examination rooms and ripped off her shirt and bra with the knife. Thereafter, he took the keys to Bitzelberger's truck and went out the back door of the clinic to the parking lot. When Bitzelberger heard the back-door bell indicating that the man had left the building, she freed her feet and ran out the front of the clinic, across the street, and into a neighboring pharmacy. There, she had pharmacy employees call for help.

After law enforcement officers arrived on the scene, Bitzelberger gave a description of her attacker and then identified appellant as her attacker from his picture as a registered sex offender on the Arkansas Crime Information Website. The next day, appellant was apprehended by law enforcement. While he was being transported to jail, appellant confessed to Mulberry Police Chief Joshua Craig. Later, appellant gave a videotaped confession to Crawford County Sheriff's Department Detective Ken Howard.

On February 9, 2010, the State filed an amended information charging appellant with aggravated robbery in violation of Ark.Code Ann. § 5–12–103, a Class Y felony; kidnapping in violation of Ark.Code Ann. § 5–11–102, a Class Y felony; attempted rape in violation of Ark.Code Ann. § 5–3–201, a Class A felony; and enhanced sentencing as a habitual offender. Prior to trial, appellant filed a motion to suppress his custodial statements and a motion in limine to exclude Bitzelberger's photographic identification of appellant, a surveillance videotape from the pharmacy across the street showing Bitzelberger running across the street, and photographs of Bitzelberger taken after the incident.

The circuit court held a hearing on the motions on January 28, 2010, with a follow-up hearing held the morning of trial on February 10, 2010. Evidence was presented that appellant had four prior felonies and had served twenty-one years in prison in Georgia. After hearing testimony and argument from both parties, the circuit court found that the photographic identification of appellant by Bitzelberger on the day of the incident was not unduly suggestive because at the time, appellant was not a suspect in the crime. Therefore, an actual photographic lineup had not taken place. The court did prohibit the State from mentioning that the photographs were accessed from the sex-offender registry. The circuit court also found that the videotape and photographs were admissible. As to the suppression of appellant's custodial statements, the circuit court found that appellant made a knowing and voluntary waiver of his rights.

At trial, Bitzelberger identified appellant as the man who accosted her on April 29, 2009. She testified that as she was leaving the Mulberry Clinic, appellant “came at” her with a knife to her throat. He pushed her back into the clinic; taped her mouth, wrists, and ankles with duct tape; and demanded money. Bitzelberger stated that appellant warned her that he would not kill her if she cooperated. She testified that appellant took six dollars out of her purse and then asked her where the clinic money was kept. After appellant removed the tape from her mouth, Bitzelberger told appellant the money was in the front office. Appellant carried Bitzelberger over his shoulder to the front of the clinic where he took $102.60 out of the clinic's coffers. Bitzelberger stated that appellant wiped down the handles of the drawer with his sleeve. Appellant then carried Bitzelberger back to one of the clinic's examination rooms. There, he placed her on the examination table and re-taped her wrists behind her back. Bitzelberger pleaded with appellant not to hurt her and she would not tell anyone what he had done. Appellant responded that “that's what they all say.” Appellant told Bitzelberger that if she did not shut up, he was going to kill her. At that point, appellant used the knife to cut open Bitzelberger's shirt and cut off her bra. Appellant made a comment about Bitzelberger's youth and that “they don't know what they're missing out on.” Bitzelberger testified that appellant touched the inside of her leg when he made the statement. Appellant again taped her mouth shut and asked for the keys to her truck. She nodded to her left jacket pocket. Appellant removed the keys from her pocket and exited the clinic through the back door. Bitzelberger stated that when she heard the service bell above the back door indicating that appellant had left, she rolled her ankles to remove the tape. She tripped, fell into a weight scale, hit a table, knocked over several chairs, and ran out the front of the clinic to the pharmacy across the street where employees immediately called for the police.

Bitzelberger testified that she got a good look at appellant during the incident. She described him to police as 5'8? or 5'9?, blue-eyed, with salt and pepper hair, a moustache, and an unshaven face. Bitzelberger testified that Detective Patti Bonewell with the Crawford County Sheriff's Department showed her twenty-five pictures to try to identify her attacker. Bitzelberger did not identify any of the men pictured as the perpetrator. However, Detective Bonewell showed Bitzelberger a second batch of photographs, and she immediately identified appellant as her attacker.

Martha Wilkins testified that she was employed by the Mediquik Pharmacy in Mulberry and was working on April 29, 2009. She stated that she saw a man cross the street and go behind the Mulberry Clinic at approximately closing time. Wilkins identified appellant as the man that she saw that day. Ten or fifteen minutes after Wilkins saw the man, Bitzelberger rushed into the pharmacy. Wilkins testified that Bitzelberger's shirt and bra were cut so that her breasts were exposed, that she had duct tape hanging from her ankle, that her hands were taped behind her back, and that she had tape across her mouth.

Franklin County Sheriff's Officer Brent Scott testified that on April 30, 2009, he was summoned to assist in the apprehension of appellant. Dispatch informed Officer Scott that appellant was on foot running west along Highway 64. Officer Scott apprehended appellant at an apartment complex off the highway after several bystanders indicated the direction the man had ran. Officer Scott testified that there was a short foot chase but that after he drew his firearm and warned appellant to stop, he did so. Officer Scott informed appellant of his Miranda rights and handed him off to Mulberry Police Chief Joshua Craig.

Chief Craig testified that he arrived at the pharmacy shortly after 911 dispatch reported the call of a possible kidnapping. Chief Craig stated that he recovered a surveillance recording from the pharmacy of the outside perimeter. He said that the next day, he took custody of appellant from Officer Scott and transported appellant to the Crawford County jail. Chief Craig admitted that he did not Mirandize appellant but said that he overheard Officer Scott recite the rights to appellant. On the way to the jail, almost immediately after being placed in the patrol car, appellantbegan talking and confessed to the officer that he went to the clinic with a knife and duct tape because he needed money. Chief Craig testified that he told appellant that it was best he wait and talk to the investigator at the jail. Appellant, however, kept talking. Appellant told Chief Craig that when the woman opened the back door, appellant pushed his way into the clinic, taped the woman's hands, feet, and mouth, and stole money. Appellant said that he cut her shirt and bra off but that he never intended to hurt her. Appellant stated that he took her keys but realized it was a manual transmission, which he could not drive. When appellant saw the woman run across the street, he fled. Chief Craig testified that toward the end of his confession, appellant began to cry and ask for help.

Detective Patti Bonewell testified that she responded on April 29 to lead the investigation. She stated that when she reached the scene she met with the victim, who still had her hands tied behind her back and was distraught. Detective Bonewell took several pictures of the crime scene...