Thomas v. State
| Decision Date | 18 January 1994 |
| Docket Number | No. CR,CR |
| Parties | Nathaniel THOMAS, Appellant, v. STATE of Arkansas, Appellee. 93-520. |
| Court | Arkansas Supreme Court |
Lea Ellen Fowler O'Kelley, Little Rock, for appellant.
Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.
This is an appeal from the criminal convictions of Nathaniel Thomas for capital murder and first-degree murder. Appellant Thomas was charged by felony information on April 7, 1992, with three counts of capital murder for his role in the shooting deaths of Cyrus Lee, Sabrina Earl, and Marcus Johnson at an apartment in Little Rock on February 19, 1992.
He was tried before a jury on December 9 and 10, 1992, in Pulaski County Circuit Court and was found guilty of the capital murder of Cyrus Lee, and the first-degree murders of Sabrina Earl, a pregnant woman, and Marcus Johnson. Thomas received a sentence of life imprisonment without parole for the capital murder and two forty-year sentences for the first-degree murders. The trial court ordered the two forty-year terms to run concurrently together but consecutive to the life term.
On appeal, Thomas raises two points for reversal, one regarding the sufficiency of the evidence and the second concerning the admissibility of custodial statements. Neither argument has merit, and we affirm the judgment of the trial court.
In his first argument, Thomas contends that the evidence presented at trial was insufficient to establish that he had committed the crimes with which he was charged. Indeed, the proof at trial consisted primarily of Thomas's own taped statements, given to police after his apprehension. It is Thomas's contention that nothing he said to the officers could be considered sufficient evidence that he had acted with the purpose of furthering a homicide.
However, Thomas's sufficiency argument was not preserved for appeal. He made a motion for a directed verdict at the close of the State's case and then called his own witnesses. A defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled waives any further reliance upon the former motion. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).
At the conclusion of the case for the defense, Thomas's attorney introduced a stipulation concerning expert testimony about blood on a jacket and tee-shirt. The State called a rebuttal witness, and, after her appearance, Thomas's attorney moved for a mistrial on the basis that the State had violated the rule of sequestration of witnesses. The court agreed to consider the motion if it could be shown that the prosecutor had access to information regarding the rebuttal testimony in the police case file.
The State rested its rebuttal, and both the prosecutor and the defense counsel indicated that they were ready for the court to instruct the jury. Following the delivery of instructions, closing arguments were made. The jury then retired to consider its verdict.
At that point, defense counsel developed the objection made earlier in relation to the testimony of the State's rebuttal witness. A police report was read into the record by Thomas's attorney as a proffer of the reporting officer's testimony in an effort to point to other potential suspects.
Only then did the subject of the renewal of the motion for directed verdict arise. The following exchange occurred between the trial judge and the defense counsel:
Discussion then immediately returned to the proffered testimony of the police officer. The reference to a motion for directed verdict was rather parenthetical in nature, suggesting an afterthought on the part of court and counsel.
Nothing in the record suggests that an unrecorded renewed motion had been lodged earlier. Instead, it appears that the prompting of the trial court was required to nudge Thomas's attorney to make a belated renewal of the motion for a directed verdict made at the close of the State's case-in-chief. But by that time, the jury was well into the course of its deliberations, and it was too late for renewal.
This court has repeatedly and emphatically held that, in order to preserve for appeal the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State's case and at the close of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).
In Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992), the appellant had moved for a directed verdict at the close of the State's case but failed to renew the motion at the end of all the evidence as required by Ark.R.Crim.P. 36.21(b)--the same as in this case. We held that the rule is strictly construed and that, accordingly, Henry's argument concerning the sufficiency of the evidence could not be considered. See also Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992).
This case presents a different, somewhat novel, twist. With a suggestion from the trial court, the defense attorney signaled her desire to renew her motion for a directed verdict. Yet the whole case had long since closed, and the jury had long since retired. Thomas contends that such a practice is common in the Second Division of Pulaski County Circuit Court and amounts to "procedural housekeeping." But a motion for a directed verdict at the close of the case is something more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant. It is not a technicality subject to "tidying up" in chambers.
This court has had occasion, in Hayes v. State, supra, to address another curious set of circumstances. There, Hayes failed altogether to move for a directed verdict but did move, at the conclusion of a discussion of instructions prior to the jury's return to the courtroom, for a dismissal for lack of evidence. "Even if we were to equate the dismissal motion with one for a directed verdict," we declared, 312 Ark. at 352, 849 S.W.2d 501.
The issue of the sufficiency of the evidence has not been properly preserved, and we will not address it.
For his second point for reversal, Thomas argues that the trial court erred in admitting statements he had made to police officers while in custody. 1 He asserts that the statements, which formed the backbone of the State's case against him, were obtained by means of false promises made by the police and were therefore involuntary under the totality of the circumstances.
Custodial statements are presumed to be involuntary. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). On appeal, the burden is on the State to show that the confession was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). A statement induced by fear or hope of reward is not voluntary. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). In determining whether a custodial statement is voluntary, this court makes an independent review of the totality of the circumstances and reverses only if the trial court's findings are clearly against the preponderance of the evidence. Sanders v. State, supra. The totality is subdivided into two main components: the statement of the officer and the vulnerability of the defendant. Id.
Thomas testified at the suppression hearing that he had been in and out of the criminal justice system for more than twenty years and had more than four prior felony convictions. He stated that he had been given immunity for his testimony in a 1977 capital murder trial.
Thomas was pulled over while driving on March 8, 1992, and subsequently arrested on the basis of outstanding warrants on unrelated charges and given his Miranda rights by Little Rock police officer Randy Reaves. The arresting officer, who had known Thomas in connection with other police matters for a period of time, transported him to the police station and inquired if he knew anything about the triple homicide.
Thomas testified that he had been smoking crack cocaine in a glass pipe at the time of his arrest and that, when he and the officer reached the...
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