Tisdale v. State, CR

• Decision Date: 07 December 1992
• Docket Number: No. CR,CR
• Parties: Adrian Bruce TISDALE, Appellant, v. STATE of Arkansas, Appellee. 92-570.
• Court: Arkansas Supreme Court

Page 803

843 S.W.2d 803

311 Ark. 220

Adrian Bruce TISDALE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-570.

Supreme Court of Arkansas.

Dec. 7, 1992.

Faye Bancroft, Joann C. Quirk, Little Rock, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

A Pulaski County Circuit Court jury found the appellant, Adrian Tisdale, guilty of two counts of kidnapping, one count of capital murder, and one count of criminal attempt to commit capital murder. Tisdale received sentences of life imprisonment on each kidnapping charge, life in prison without parole on the charge of capital murder and sixty years for attempted capital murder. Tisdale appeals the convictions and raises four points for reversal. We find his contentions without merit and affirm.

Tisdale first argues there was insufficient evidence upon which the jury's verdicts of guilty could rest. We disagree and hold that there was substantial evidence to support the jury's verdicts.

On November 10, 1991, at approximately 6:00 a.m., Little Rock Police were summoned to the parking lot of Little Rock Crate and Basket Company, located on East 14th street, where a white Toyota had been found. Two men, Ira Akins and T.J. Morgan, were found inside the car, and both had been shot in the head. Morgan had suffered three gun shot wounds while Akins had suffered two. The shots killed T.J. Morgan; miraculously Akins survived.

Ira Akins was the state's star witness at trial, and it was upon his testimony that the jury returned a verdict of guilty on all charges. At trial, Akins recounted the events which transpired in the early morning hours of November 10, 1991, as follows:

At approximately 2:00 a.m. Akins exited a well known gambling house located near the Little Rock Airport. Akins walked to, entered and remained inside his girlfriend's white Toyota which was situated in front of the establishment. A few minutes later, Tisdale and another man, Anthony Johnson, exited the gambling house and approached the white Toyota. Akins let the two men inside the car. (Akins and Tisdale knew one another.) Tisdale sat behind the passenger seat, while Johnson sat directly behind Akins, who was in the driver's seat. Tisdale revealed a gun, and held it on Akins. Then, T.J. Morgan, Akins' friend, left the gambling house and entered the white Toyota, taking the unoccupied passenger's seat. T.J. Morgan was unaware that Tisdale had a gun.

Tisdale ordered Akins to drive. The four men drove around the projects in the area for approximately three-to-four hours until Tisdale told Akins to drive to Little Rock Crate and Basket Company. When the car stopped, Tisdale shot T.J. three times and Akins twice. A few days later, Tisdale was arrested after Akins identified Tisdale as the man who shot him and T.J. Morgan.

Tisdale claims reversal of his convictions is required in that, absent Akins' own testimony, no evidence existed linking Tisdale to the shootings. Tisdale also points out the exculpating testimony of several uninterested witnesses. Further, Tisdale claims Akins could not recall the events which occurred prior to the shooting because the gunshot wounds caused Akins' to suffer retrograde amnesia. He supported this theory through expert medical and psychological testimony and by eliciting and emphasizing numerous critical contradictions in Akins' own account of the events leading up to the shooting.

Tisdale moved for a directed verdict at the close of the State's evidence and again at the close of the case, thus preserving for appeal the issue of sufficiency of the evidence. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). On appeal, the appellate court does not weigh evidence on one side against the other; it simply determines whether the evidence in support of the verdict is substantial. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).

Unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990). Further, the uncorroborated testimony of one state's witness is sufficient to sustain a conviction. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985); Meeks v. State, 161 Ark. 489, 256 S.W. 863 (1923). Although Akins' description of the events leading up to the shooting sometimes varied drastically from statement to statement, Akins was sure of one thing--that Tisdale was in fact the person who shot him and T.J. Morgan. From this declaration he never wavered.

We affirmed the conviction in Davis based solely upon a store manager's testimony that the accused was the person who had robbed the store some six years earlier. That case involved a six year old identification, while in the case at bar, the victim-witness, Akins, actually knew the accused and identification was not a problem.

The contradictory nature of both the lay and expert evidence necessarily required the jury to base its ultimate determination on the credibility of the witnesses before them. The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark 390, 824 S.W.2d 838 (1992). Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finders conclusion. Brown v. State, 309 Ark. at 506, 832 S.W.2d at 479 (1992). In keeping with these settled principles, we hold that the jury's acceptance of Akins' invariable testimony that Tisdale fired the shots, combined with acceptance of expert opinion that Akins did not suffer from retrograde amnesia, is sufficient to support the convictions.

Tisdale next argues that both kidnapping convictions are invalid, and must be set aside, in that their imposition violated Ark.Code Ann. § 5-1-110 (1987). That statute prohibits an accused from being convicted of more than one offense when the proof required to establish the greater offense necessarily includes proof of every element of another. In particular, Tisdale contends that the state used the kidnapping convictions as the underlying felonies for finding him guilty of capital felony murder of T.J. Morgan and criminal attempt to commit capital felony murder of Ira Akins.

Tisdale's contention is without merit. The state amended its earlier information charging Tisdale with capital felony murder and explicitly charged Tisdale under Ark.Code Ann. § 5-10-101(a)(4) (Supp.1991) with capital murder for the premeditated and deliberated killing of T.J. Morgan. Thus, Tisdale was not charged under the "capital felony murder" provision when he was tried. It is clear that no proof of an underlying felony was necessary to convict Tisdale of the capital murder of T.J. Morgan, and consequently the dictates of § 5-1-110 were not violated.

However, the state did...