Trotter v. State, CR
| Decision Date | 10 November 1986 |
| Docket Number | No. CR,CR |
| Citation | 719 S.W.2d 268,290 Ark. 269 |
| Parties | Robert Lee TROTTER, Jr., Appellant, v. STATE of Arkansas, Appellee. 86-112. |
| Court | Arkansas Supreme Court |
Graves & Graves by Wm. Randal Wright, Hope, for appellant.
Steve Clark, Atty. Gen. by Lee Taylor Franke, Asst. Atty. Gen., Little Rock, for appellee.
In this appeal, the appellant challenges the admissibility of a confession purportedly made by him, and the sufficiency of the evidence of aggravated robbery. We find the evidence was not sufficient to warrant the conviction and, accordingly, reduce the sentence to that prescribed for the lesser included offense of first degree battery. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(b).
The facts supporting the charge as gleaned from the testimony of the victims and an accomplice, were as follows. The appellant and a friend, Lawrence Benson, walked into Bob's Grocery Store in Ozan, Arkansas. The owner of the store, Robert Goodlet, was inside along with his brother, Sloman Goodlet, and Virgil Tollett. As soon as they walked inside, the appellant, who was carrying a gun, shot Robert in the neck. He then fired at Sloman from about four feet away, but the gun apparently misfired. Sloman testified he thought he was hit and dropped to the floor. The appellant then reached over the counter with the gun and held it to Sloman's head, but it again didn't fire. Appellant "fooled" with the gun for a second and the two men then walked out. They stood outside for a moment, working on the gun, and then turned back towards the store. When someone pulled up, appellant and Benson ran off. No words at all were spoken by the two men, according to Benson, Tollett, and the Goodlet brothers. No attempt was made to take any money, merchandise, or personal effects.
Appellant's confession was admitted into evidence against him. In it, he stated, that he and Benson were fishing in a stock pond when Benson started talking about robbing Bob's Store and "getting some money." Appellant said they went through the door of the store, talked to the men a minute, then appellant told them he wanted the money and pulled the gun out of his right pants pocket. The gun went off, according to appellant, and he and Benson turned and ran.
The only evidence of robbery, which is a necessary element of proof in a charge of aggravated robbery, Ark.Stat.Ann. § 41-2102 (Supp.1985), § 41-2103 (Repl.1977), is contained in appellant's statement. Ark.Stat.Ann. § 43-2115 (Repl.1977) provides:
[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.
To satisfy this statute and corroborate the confession, the state had to prove only that the crime was committed by someone, McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), however, the state did not meet its burden of proof in this instance.
In other cases, we have found sufficient evidence that a robbery was committed when the appellant was wearing a watch belonging to the victim when he was arrested, Smith v. State, supra; where the appellant took money from the victim's billfold after he raped and murdered her, Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); and where appellants forced their way at gunpoint into a hotel room and ordered the male occupant to "Get them up." Johnson & Carroll v. State, 276 Ark 56, 632 S.W.2d 416 (1982). In Johnson & Carroll, although the appellants did not take anything from the hotel room, they were convicted of aggravated robbery. They argued the evidence was insufficient for the jury to find that their purpose was to commit a theft. We held:
There is no merit to this argument. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. (citation omitted).
The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Here, there is no evidence that appellants knew any women were in the room; therefore, the jury could have excluded intent to rape. The jury could also have concluded that if appellants had intended to murder Sealey they would not have paused to demand that he raise his hands.
Common knowledge and experience, when considered in the light of the facts of this case, could enable the jury to find that the only purpose appellants could have had in sticking a gun in Sealey's chest and saying, "Get them up." was to rob Sealey.
Here, the testimony indicated that the opposite occurred. The appellant did not say or do anything when he entered the store to shed light on his intent. Instead, he just opened fire. Accordingly, there was no evidence appellant intended to do anything but harm the Goodlets.
The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984). Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Id. On review it is only necessary to ascertain that evidence which is most favorable to the appellee and if there is substantial evidence to support the verdict, the finding must be affirmed. Id. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). Inasmuch as there was no substantial evidence, direct or circumstantial, to enable a jury to find appellant guilty of aggravated robbery, the conviction must be reversed.
Appellant also contends that the trial court erred in admitting his confession into evidence. His argument primarily challenges that portion of the rights form read to him which states that an attorney will be provided if he cannot afford to retain one.
A Denno hearing was held at which evidence was offered that appellant was advised of his rights, indicated that he understood each right, and initialed the rights statement. The trial court found the appellant was advised of his rights, understood them, and freely and voluntarily gave his statement.
Number four on the rights form states: "Do you understand that if you cannot afford a lawyer, one will be appointed for you by the court before any questioning if you so desire?" Appellant maintains that the form of this statement does not meet the standards of Miranda because it does not provide that the appointed lawyer will represent him without cost.
Sheriff Dick Wakefield testified at the Denno hearing as follows:
....
Further, Charles A. Hefner of the Arkansas State Police, who was with Sheriff Wakefield during the reading of the rights and taking of the statement, testified that Sheriff Wakefield
The trial court was justified in finding from this testimony that the availability of an attorney free of charge was explained to appellant. Nevertheless, in discussing this issue before we have criticized the use of similar forms that do not make it clear to an indigent defendant that an attorney will be provided to him without cost if he cannot afford to retain one. In Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981) we explained:
Although it would be a better practice to acquaint a defendant that counsel would be appointed by the court without cost to him, here, when we examine the totality of the circumstances surrounding the waiver and the confession, the lack of the words "free of charge", or similar words, does not appear to negate the overall effectiveness of the twice given warning or the voluntariness of the confession. Therefore, we cannot say the trial court's finding that the confession was voluntary is clearly against the preponderance of the evidence.
See also, Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).
Had the sheriff not augmented the form...
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Owens v. State
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