Terry v. State

• Court: Arkansas Supreme Court
• Writing for the Court: KAREN R. BAKER, Associate Justice
• Citation: Terry v. State, 2020 Ark. 202, 600 S.W.3d 575 (Ark. 2020)
• Decision Date: 21 May 2020
• Docket Number: No. CR-18-982,CR-18-982
• Parties: Jarell Davis TERRY, Appellant v. STATE of Arkansas, Appellee

2020 Ark. 202

600 S.W.3d 575

Jarell Davis TERRY, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-982

Supreme Court of Arkansas.

Opinion Delivered: May 21, 2020

Cullen & Co., PLLC, by: Tim Cullen, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

This appeal returns after our remand in Terry v. State , 2019 Ark. 342, 2019 WL 6228645 ( Terry I ). Appellant, Jarell Davis Terry, was found guilty by a Drew County Circuit Court jury of first-degree murder, aggravated robbery, and theft of property. Terry was sentenced to life imprisonment for first-degree murder, life imprisonment for aggravated robbery, and fifteen years’ imprisonment for theft of property. Terry argues three points on appeal: (1) substantial evidence does not support his convictions; (2) the circuit court abused its discretion on a juror-misconduct allegation; and (3) the record was inadequate on jury questions during deliberations. We affirm for the reasons that follow.

I. Procedural History

Terry's convictions and sentences stem from the November 14, 2017 theft, robbery, and murder of Christon Sheets. The State charged Terry and his accomplice, Dominze Figures, with first-degree murder, aggravated robbery and theft of property.¹ At Terry's jury trial, State's witness Mistie Pamplin testified that she was Sheets's girlfriend and the two lived together in Wilmar. Pamplin testified that on November 14, 2017, Sheets drove to McGee, picked up Figures and Terry and brought them back to their house. Pamplin testified that Sheets had approximately one pound of marijuana and two guns at the house. Pamplin testified that the group spent the day smoking marijuana and playing dominoes and video games. Pamplin testified that there was a bag of marijuana on the top bunk bed and some in a jar on the floor. Pamplin further testified that while they were smoking, Terry and Figures were holding Sheets's guns—Terry held the black one and Figures held the brown one. While standing in the doorway and each holding one of Sheets's guns, Figures pointed the gun at Pamplin and Sheets and said, "[Y]ou know what this is[.]" Pamplin stated that Terry was also pointing a gun at Pamplin and Sheets when this statement was made. Pamplin testified that Sheets jumped up and began fighting with Terry. Pamplin further stated that as the two began fighting, she ducked her head and heard a gunshot.

Pamplin looked up to see that Sheets had been shot, but she did not see who had pulled the trigger. Pamplin testified that Sheets was on the floor and asked Pamplin to take him to the hospital and Terry responded, "[B]itch, you better not." Pamplin testified that the two men took Sheets's guns and "the bag of weed off the top bunk" and fled the scene. Sheets died from his gunshot injuries.

Dr. Stephen Erickson, Deputy Chief Medical Examiner at the Arkansas State Crime Lab, testified that Sheets's cause of death was due to gunshot wounds to his abdomen and pelvis. At the close of the State's evidence, Terry moved for a directed verdict on each count. The circuit court denied Terry's motion.

Terry testified in his own defense. Terry testified that he and Figures were simply going to Sheets's house to hang out for the weekend and there was no discussion of an illegal plan. The group arrived at Sheets's house at around 1:00 p.m., smoked weed, played dominoes and video games, and ate pizza. Terry testified that later that evening, approximately two minutes before the shooting, he picked up one of the rifles while Figures had the other rifle. However, Terry testified that he gave the rifle back to Sheets, who placed the rifle in his own lap. Terry stated that prior to the shooting, Figures was acting different. Terry further stated that at the time of the shooting, he did not have the rifle in his hand. Terry testified that when Figures stood up and said, "you know what this is," Sheets jumped up and tackled Terry, and the two began wrestling. When Sheets jumped up, the gun fell to the floor. Sheets pinned Terry to the ground, picked up the gun, and pointed it at Figures. Terry heard gunshots and realized that he had been shot in the ankle. Terry testified that Figures instructed him to grab the marijuana and the gun. Terry complied and took the marijuana and the gun as they left Sheets's home. Terry testified that Pamplin was screaming, and he told her to shut up, but he denied pointing a gun at her and did not say "bitch you better not." Terry testified that he and Figures fled and got into a getaway car driven by Figures's girlfriend, which Terry claimed he knew nothing about.

At the close of the evidence, Terry renewed his motions for directed verdict on all counts, which was again denied except that the circuit court granted the motion as to the intentional-killing formulation of first-degree murder. Terry was found guilty of first-degree murder, aggravated robbery, and theft of property. The jury sentenced Terry to two terms of life imprisonment and one term of fifteen years’ imprisonment and recommended that the terms run consecutively. The circuit court entered its judgment and commitment order consistent with the jury's recommendation except that it ran the fifteen-year term concurrent with the second life sentence. This appeal followed.

II. Points on Appeal

A. Sufficiency of the Evidence

For his first point on appeal, Terry argues that the circuit court erred in denying his motion for directed verdict. On appeal, Terry argues that there was insufficient evidence to sustain his convictions of first-degree murder, aggravated robbery, and theft of property. On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Reynolds v. State , 2016 Ark. 214, 492 S.W.3d 491. This court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Id. 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. Id. This court does not weigh the evidence presented at trial or assess the credibility of the witnesses, because those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Only evidence supporting the verdict will be considered. Leaks v. State , 345 Ark. 182, 45 S.W.3d 363 (2001).

With these standards in mind, we turn to Terry's sufficiency argument. A person commits murder in the first degree if

[a]cting alone or with one (1) or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]

Ark. Code Ann. § 5-10-102(a)(1)(B) (Supp. 2019). Further, we have "consistently defined circumstances manifesting extreme indifference to the value of human life as deliberate conduct that culminates in the death of another person. Jefferson v. State , 372 Ark. 307, 276 S.W.3d 214 (2008) ; Wyles v. State , 368 Ark. 646, 249 S.W.3d 782 (2007) ; Branstetter v. State , 346 Ark. 62, 57 S.W.3d 105 (2001) ; Coulter v. State , 343 Ark. 22, 31 S.W.3d 826 (2000) ; Davis v. State , 325 Ark. 96, 925 S.W.2d 768 (1996). We have also stated that extreme indifference requires actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. Perry v. State , 371 Ark. 170, 264 S.W.3d 498 (2007)." Price v. State , 373 Ark. 435, 439, 284 S.W.3d 462, 465–66 (2008).

With regard to aggravated robbery, a person commits aggravated robbery if he or she commits robbery as defined in § 5-12-102, and the person is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(1). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, he or she employs or threatens to immediately employ physical force on another person. Ark. Code Ann. § 5-12-102(a)(3). "A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence. Robinson v. State , 353 Ark. 372, 108 S.W.3d 622 (2003). Intent to commit a robbery may be inferred from the facts and circumstances of the case. Jenkins v. State , 350 Ark. 219, 85 S.W.3d 878 (2002)." Jefferson v. State , 359 Ark. 454, 464, 198 S.W.3d 527, 532–33 (2004). Further, theft of property occurs when a person takes unauthorized control over the property of another person with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(1). Finally, an accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of the offense, aids, agrees to aid, or attempts to aid the other person in the planning or committing of the offense. See Ark. Code Ann. § 5-2-403(a)(2).

Based on the evidence presented at trial, we hold that sufficient evidence supported Terry's conviction for first-degree murder arising out of the shooting of the aggravated-robbery victim, Sheets. Pursuant to Pamplin's testimony, when Figures pointed his gun at Sheets and Pamplin and stated, "[Y]ou know what this is," Terry also pointed his gun at Pamplin and Sheets. After Sheets was shot and he asked Pamplin to take him to the hospital, Terry told Pamplin, "[B]itch, you better not." Finally, Figures and Terry fled the scene with Sheets's guns and marijuana.

Based on the above facts, it was clear that Sheets was killed in the furtherance of the aggravated robbery. Despite Terry's testimony that he acted under duress because he feared Figures, the jury was free to accept or reject his testimony. See Reynolds, supra. Viewing the evidence in the...