Walden v. State

• Decision Date: 02 May 2012
• Docket Number: No. CA CR 11–240.,CA CR 11–240.
• Citation: 2012 Ark. App. 307,419 S.W.3d 739
• Parties: Larry Eugene WALDEN, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 307

419 S.W.3d 739

Larry Eugene WALDEN, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 11–240.

Court of Appeals of Arkansas.

May 2, 2012.

Brian R. Huffman, Spears Huffman, PLLC, Benton, for Appellant.

Dustin McDaniel, Atty. Gen., Brad Newman, Asst. Atty. Gen., for Appellee.

ROBIN F. WYNNE, Judge.

Larry Eugene Walden appeals from his conviction on a charge of aggravated robbery. This case was originally submitted to this court in no-merit form. Counsel's motion to withdraw was denied and rebriefing was ordered. Walden v. State, 2012 Ark. App. 38, 2012 WL 76163. The case has now been submitted with a merit brief. In his brief, appellant alleges error regarding the trial court's denial of his motion to suppress his custodial statement, the trial court's instructions to the jury during both the guilt and sentencing phases, the trial court's denial of his motions for a directed verdict, and the trial court's denial of his motion for a new trial. We affirm the judgment of the trial court.

Appellant was charged with one count of aggravated robbery. In the information, the State sought to have appellant sentenced as a habitual criminal. The State filed a motion in limine on October 27, 2010, in which it sought to exclude certain testimony regarding appellant's prior convictions for bank robberies he committed in Oklahoma and the sentences he received. On December 20, 2010, appellant filed a motion to suppress statements he made while in custody and evidence seized during a search of his hotel room following his arrest. Appellant also filed a motion to strike Count II of the information, wherein the State sought to have him sentenced as a habitual offender.

At the hearing on appellant's motion to suppress, appellant testified that he was arrested three days after the robbery in question was committed by as many as ten officers in Dardanelle at a motel where he was staying. When appellant was arrested, he was fifty-seven years old and a high-school graduate. Appellant claimed that when he was handcuffed behind his back, he experienced a lot of pain. Appellant said that when he brought this to the officers' attention, he was told that they were waiting on search warrants and if he consented to a search of his hotel room and his truck, it would save time. Appellant testified that he considered that statement to be an inducement to give consent. Appellant later testified that he initially indicated to the officers that he would give consent if they would handcuff him in front. Appellant remembered signing the consent.

According to appellant, he is an alcoholic, and at the time he was arrested he had been drinking heavily, although he later stated that he had not consumed any alcohol for five to six hours prior to his arrest. Appellant stated that in the three days between the robbery and his arrest, he had consumed three large bottles of vodka. He stated that the bottles were in his room, but they were not among the items seized by police during the search despite his request that they be taken. Appellant was driven back to Fort Smith. He stated that an FBI agent was driving and Detective Ron Scamardo ¹ was riding next to him in the backseat. During the trip, Det. Scamardo took a statement from appellant, during which appellant admitted to robbing the bank. Appellant claimed that he told Det. Scamardo three times that he wanted an attorney before his statement was taken. Appellant stated that he also told the detective that he was intoxicated. Appellant testified that he did not remember signing a Miranda form, although that form and the consent form reflect that they were signed within two minutes of each other.

Captain John Foster with the Yell County Sheriff's Department testified that he assisted in the arrest of appellant. Captain Foster did not remember appellant stating that the handcuffs were causing him pain. Captain Foster denied that any promises were made to get appellant to sign the consent. He testified that appellant appeared calm and lucid and that he did not appear to be intoxicated. Captain Foster did not remember appellant saying anything about vodka bottles, nor did he see any vodka bottles, although he did not search the room.

Detective Scamardo testified that appellant gave verbal consent to search his hotel room and signed both the consent and the Miranda form after he read them to appellant. Detective Scamardo stated that appellant never complained about discomfort in his shoulder, nor were his handcuffs adjusted in order to obtain consent. Appellant did not appear to be intoxicated to Det. Scamardo, although he did smell a slight odor of intoxicants on appellant. Detective Scamardo stated that appellant never requested an attorney in his presence. He denied that there were any FBI personnel at the scene of the arrest and stated that, during the trip from Dardanelle to Fort Smith, the vehicle was driven by a Major Boyd. Detective Scamardo seized $859 in cash from the robbery from appellant's wallet.

Major Chris Boyd with the Fort Smith Police Department testified that he drove appellant and Det. Scamardo to Fort Smith. Major Boyd denied ever hearing appellant ask for an attorney. Major Boyd also denied that he or anyone else with him identified themselves as an FBI agent or showed FBI credentials.

The trial court found that appellant freely and voluntarily gave both his statement and the consent to search. Appellant's motion to suppress was denied.

At trial, Elsie Yarborough testified that she was working as a teller at a First National Bank in Fort Smith on June 12, 2009, when a man she later identified as appellant came into the bank. Appellant handed Ms. Yarborough a bag with a note taped to it that read, “This is a robbery. I have a gun. Give me all your money, no red dye pack.” Ms. Yarborough stated that at first she thought it was a joke but realized appellant was serious when she looked up and he was staring at her with a “menacing scowl” on his face. She took the money out of her drawer and put it in the bag. Ms. Yarborough activated a silent alarm as soon as appellant left the bank. Ms. Yarborough never saw a gun but gave appellant the money due to the implied threat on her life.

Detective Scamardo testified that Ms. Yarborough picked appellant out of a photo lineup. He testified, as he had in the earlier hearing, that appellant signed a consent to search and a Miranda form after those documents were read to him. A DVD recording of the statement appellant gave to Detective Scamardo was played for the jury.

After the State rested, appellant moved for a directed verdict, which was denied by the trial court. In appellant's case-in-chief, Detective Tammy DeMeir with the Fort Smith Police Department testified that she arrived at the bank about twenty minutes after the robbery. Detective DeMeir took a recorded statement from Ms. Yarborough. A DVD recording of Ms. Yarborough's statement was played for the jury. After he rested, appellant renewed his directed-verdict motion, which the court denied again.

Prior to the instruction of the jury by the trial court, appellant requested an instruction on the lesser-included offense of robbery. The trial court declined to give the instruction on robbery. The jury found appellant guilty of aggravated robbery. After the verdict was reached, the trial court entered into evidence a certified copy of a judgment from the Eastern District of Oklahoma reflecting that appellant had been convicted on three prior counts of robbery. Appellant proffered a sentencing instruction in which he requested that the jury be informed of the nature of his three prior felony convictions and the sentences he received. The trial court refused the instruction. The jury sentenced appellant to 720 months' imprisonment as a habitual offender. That sentence was put into effect via a judgment and commitment order entered by the trial court on January 14, 2011. This appeal followed.

Although it is his fourth point on appeal, due to double-jeopardy concerns, this court must first address appellant's argument that the trial court erred by denying his motions for directed verdict. Tucker v. State, 2011 Ark. 144, 381 S.W.3d 1. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Taylor v. State, 2011 Ark. 10, 370 S.W.3d 503. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence 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.

Appellant was convicted of aggravated robbery. A person commits aggravated robbery if he or she commits robbery as defined in Arkansas Code Annotated section 5–12–102, and the person is (1) armed with a deadly weapon; (2) represents by word or conduct that he or she is armed with a deadly weapon; or (3) inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5–12–103 (Repl.2006). Appellant argues that there was not sufficient evidence to sustain a conviction for aggravated robbery because the State failed to prove that he employed physical force.

Appellant specifically argues that the State failed to prove that he represented by word or conduct that he was armed with a deadly weapon. Appellant states that this court should reverse his conviction based upon our supreme court's holdings in Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990), and Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). In Clemmons, one member of a group of men that included the defendant pretended to be armed with a gun by sticking his finger in his jacket and took the victim's purse. Our supreme court held that where a defendant verbally represents that he is armed...