Turner v. State

• Decision Date: 05 July 2002
• Docket Number: No. CR 01-761.,CR 01-761.
• Citation: 349 Ark. 715,80 S.W.3d 382
• Parties: Jason Nugene TURNER v. STATE of Arkansas.
• Court: Arkansas Supreme Court

80 S.W.3d 382

349 Ark. 715

Jason Nugene TURNER v. STATE of Arkansas.

No. CR 01-761.

Supreme Court of Arkansas.

July 5, 2002.

COPYRIGHT MATERIAL OMITTED

Henry & Cullen, L.L.P., by: Mark Murphy Henry, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

Appellant Jason Nugene Turner appeals his convictions for capital murder and aggravated robbery from Calhoun County Circuit Court in connection with the death of Henry Lee Tatum. Following the convictions, the court, upon agreement of the parties, imposed a sentence of life without parole for capital murder and ten years for aggravated robbery. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). On appeal, Turner asserts he was denied his right to a speedy trial, that his counsel was ineffective, and that there was insufficient evidence to support the convictions. He contends that the trial court erred in denying his motion for a directed verdict. We find no error and affirm.

Facts

On August 7, 1999, Henry Lee Tatum died from a single gunshot wound to the upper-right chest. According to the testimony of Naomi Lee Hall, Tatum came into Sambo's Liquor Store in Hampton that Saturday night as he generally did to help them load the walk-in cooler. Hall further testified that at about 9:25 p.m., Tatum was seated in a chair in the storage room, and she was in the back room when she heard an argument. Hall testified that this caused her to go back to the storage room, where she saw an intruder with a silver pistol. According to Hall, the intruder stuck his hands through some shelves and shot Tatum, then came around to Tatum and demanded that Tatum "open the safe." Hall further testified that Tatum got up and began to walk to the register when he grabbed his right side and fell to the floor. Hall also testified that the intruder did not leave, but rather he went into the storage room. When she last saw him, he was pointing his gun at the bathroom doorknob. Hall left the building and called police. Tatum was later pronounced dead at the scene.

According to Hall's testimony, the intruder was wearing tennis shoes, "cargo pants, blue jean type," a denim shirt, and had a stocking over the upper half of his face. Deloris Ann Thompson, who also worked at Sambo's Liquor, testified, "I saw a black guy with short blue jeans on, no shirt, a black do-rag over his head and a gun." Thompson also testified that the do-rag covered the intruder's whole face and that the pistol was silver. Latisha Tatum testified that she knew Turner, that they had "practically" grown up together, and that on the day Tatum was killed she saw Turner in Hampton wearing short blue jeans, a white t-shirt, and a black dorag. Veronica Thomas testified she had known Turner "mostly all my life," and that she saw him that day at her house at about 4:00 p.m. wearing a white tank top, a do-rag, and light blue denim shorts.

Initially, Hall identified another person as the intruder, but later indicated she was not sure. Turner was then identified. According to the testimony of Bernard Moore, Turner was present at his house the evening of August 7, 1999, playing dominoes. Moore lives about 100 yards from Sambo's Liquor. Moore testified that Turner arrived about 7:00 p.m., and that later that evening, Turner left and was gone for about forty-five minutes. Moore further testified that upon his return, he was sweating as if he had been running. Moore also testified that Turner was wearing dark blue or black shorts and a blue bandana on his head. Further, according to Moore, Turner had on a white shirt when he left, but had no shirt on when he returned. Moore finally testified that when Turner got up from his seat after returning, he heard something fall, and saw that a gun clip had apparently fallen from Turner's pocket.

Chris Williams testified that he was present at the dominoes game and that Turner left for a time at about 9:30 p.m. Kenneth Stephens testified that on August 7, 1999, he was catering a party at Canes Park and saw Turner there about 6:30 p.m. He testified that Turner was drunk and was looking for Henry Lee Tatum. Kenneth further testified that he heard shots fired at the party after Turner arrived. Kenneth's son, Clifford Stephens, testified that he saw Turner fire the shots and that he was shooting a silver gun in the air. Kenneth Stephens also testified that Turner came back to the party about 11:00 p.m., and that he gave Turner a ride home about 2:00 a.m. Kenneth testified that during the trip, he notice blood on Turner's clothing and asked Turner what it was, and that. Turner replied it was Tatum's blood. Kenneth also testified that Turner told him Tatum had been shot that night and that while giving Turner a ride home, Turner fell asleep and a pistol slipped out of his pocket. Kenneth identified the pistol in court as the pistol he saw that night.

Angie Thomas, Turner's girlfriend, testified at trial that the pistol was hers. She further testified that in the early morning of August 8^th, Turner arrived at their house before she did, and that Kenneth Stephens came by where she and her cousins were and told them Tatum had been killed. She then testified that she went home and asked Turner who killed Tatum, and he said, "I did." She testified she then asked him with what he had killed Tatum, and Turner told her he had used her gun. She also testified that she saw Turner's white shirt and saw red spots on it.

Although projectiles and shell casings were obtained, no match to Thomas's gun were made. Rick McKelvey, of the Arkansas State Police, testified that in his interview with Turner, Turner admitted being the one that went into the liquor store. Turner's statement provides in pertinent part:

I did it I'm sorry. I didn't intend to shoot nobody ... I was the only one who went to the liquor store. I had on stonewash shorts. I didn't have no shirt. I had a nylon do-rag type stocking over my face ... Henry Lee was sitting there and I asked him to open the register. I was holding the gun on him and turned to look at the back where I heard a noise, the gun just went off. I didn't mean to shoot nobody.

This statement was read by Officer McKelvey without objection. Turner objected to admission of the statement because it was not written by Turner, but the objection was overruled. Turner does not argue that the statement was received into evidence in error.

Speedy Trial

We first address Turner's speedy-trial argument. The State initially argues that this issue is precluded on a procedural basis because Turner failed to object at the July 17 hearing when the court excluded the time from July 17 to November 1 for purposes of calculation of twelve months from the date of arrest. We note that there is no transcript of the hearing. We also note that we have nothing to rely upon but representations of the State. The State is thus arguing matters outside the record. This court does not take notice of gratuitous assertions based on matters not in the record. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990).

We therefore proceed to analyze the speedy trial issue. Under Ark. R.Crim. P. 28.1, an accused must be brought to trial within twelve months unless a necessary delay occurs as authorized in Ark. R.Crim. P. 28.3. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). This means the accused must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R.Crim. P. 28.2. Once a defendant shows his trial took place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). If a defendant is not brought to trial within the requisite time, Ark. R.Crim. P. 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Ferguson, supra.

Turner was arrested on August 19, 1999. His trial commenced on March 27, 2001. This was 586 days after his arrest. Turner thus made a prima facie showing of a speedy-trial violation, and the State was then left to show that at least 220 days were excludable. Id.

There are three periods of exclusion attributed to Turner that we must consider. First, on December 20, 1999, Turner filed a number of pretrial motions. According to the court's docket, those motions were heard and the decisions were rendered on March 20, 2000. The excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter. Gwin, supra. The total days from December 20, 1999, until the decisions were rendered on March 20, 2000, is 91 days. The docket sheet reflects that the motions were heard on March 20, 2000, but does not set out the days to be excluded against speedy trial. A trial court should enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). There was no docket entry or written order as required by the language of Ark. R.Crim.P. 28.3. However, a trial court's failure to comply with Ark. R.Crim. P. 28.3(i) does not result in automatic reversal. Hubbard, supra. As we stated in Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001), this court has consistently held that where a case is delayed by the accused and that delaying act is memorialized by a record taken at the...