Walker v. State, CR

• Decision Date: 02 March 1992
• Docket Number: No. CR,CR
• Citation: 825 S.W.2d 822,308 Ark. 498
• Parties: Clyde Elvis WALKER, Appellant, v. STATE of Arkansas, Appellee. 91-86.
• Court: Arkansas Supreme Court

Page 822

825 S.W.2d 822

308 Ark. 498

Clyde Elvis WALKER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-86.

Supreme Court of Arkansas.

March 2, 1992.

J. Blake Hendrix, Little Rock, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant appeals from his convictions of two counts of capital murder for which he received two consecutive life sentences. Appellant's convictions resulted from charges filed pursuant to Ark.Code Ann. § 5-10-101(a)(1) (Supp.1991) alleging that, while armed with a gun, he and four others robbed Art's Liquor Store, and during the course of the robbery, appellant or one of his accomplices caused the deaths of the store owner, Thomas Findley, and an employee, Charlotte Fowler. Appellant argues five points for reversal, but none of them have merit. Thus, we affirm.

We first consider appellant's argument that the trial court erred in failing to grant his motion for directed verdict. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). In review of a denial of a motion for directed verdict, the appellate court considers the evidence in the light most favorable to the appellee and considers only testimony in support of the verdict. Id.

The state clearly met its burden of proving the elements of capital murder-robbery under § 5-10-101(a)(1). In a statement, appellant admitted that he and one of his accomplices, Prince Johnson, each had a gun when they entered Art's Liquor Store. Three others stayed in a car parked outside with one or two of its doors open. While appellant's statement reflected he had no knowledge that Johnson intended to rob or kill anyone, appellant acknowledged that, at some point, perhaps even before the robbery, he had understood or thought Johnson and one of the other men in the car had planned to rob the store. Nevertheless, after appellant and Johnson entered the store, appellant apparently asked Findley or Fowler for potato chips and then heard shots. Johnson then asked appellant to get the money out of one of the cash registers, which he did. It was at this stage, or immediately afterwards, that the appellant claims he first learned Johnson had killed Findley and Fowler. They left the store, entered their car and sped away. Later, the stolen money was split between the five men.

We have repeatedly held that a person need not take an active part in a murder to be convicted if he accompanies another who actually commits the murder, and he assists in the commission of the crime--in this case, the crime of robbery. White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). The state's evidence clearly supports the verdict finding the appellant guilty of capital murder.

As an affirmative defense to the capital murder charge, appellant contends the evidence showed he did not commit the homicidal act or in any way solicit, command, induce, procure, counsel or aid in its commission. Ark.Code Ann. § 5-10-101(b) (Supp.1991). Once the state has met its burden of proof as to the elements of the offense, the burden is on the defendant to prove an affirmative defense. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). We have held that a defendant is required to prove an affirmative defense by a preponderance of the evidence, and the question as to which way the evidence preponderates is primarily a jury question. Owens, 300 Ark. 73, 81, 777 S.W.2d 205, 209.

Here, appellant claims he was unaware Johnson planned to rob or kill anyone, and although he and Johnson bore guns upon entering the liquor store, he denied having displayed or used his gun in the homicides. The jury, of course, did not have to believe appellant's story, especially when he acknowledged thinking Johnson and another accomplice had planned to rob the store. However, it was Johnson and appellant, not another accomplice, who left the car with its doors standing open as though stationed for a fast getaway. Further, it was appellant who entered the store with Johnson. Appellant then preoccupied the man (Findley) at one cash register by offering to pay for chips, and at this time, Johnson apparently killed both Fowler and Findley. Again, while appellant denied knowing what Johnson was doing when the homicides occurred, the state's evidence showed both victims had been shot within close range (within two or three feet), thus, if believed, placed appellant near Johnson at the time Johnson began shooting. Based upon these facts, the jury could have reasonably concluded the appellant aided Johnson in killing the two victims.

Appellant next argues error resulted from the deputy prosecutor misstating the law to the jury regarding appellant's affirmative defense. As mentioned above, a defendant, under § 5-10-101(b), is provided an affirmative defense in a robbery-capital murder case when the defendant was not the only participant and if the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. See Owens, 300 Ark. 73, 80, 777 S.W.2d 205, 209.

In closing argument, the deputy prosecutor misspoke, indicating the appellant had not met his burden regarding his affirmative defense because the evidence showed he aided in the robbery. Appellant objected, correctly explaining to the trial judge that all appellant had to show was that he did not aid in the commission of the homicides. The judge agreed, and asked how appellant wanted to cure the deputy prosecutor's misrepresentation. Appellant responded, requesting the judge to "read the instruction and say the homicide offense." The judge said, "The instructions there. You [deputy prosecutor] drop your argument." Appellant concluded by thanking the judge.

Later, the trial judge told appellant that he believed rereading the affirmative defense instruction would be unavailing since the jury would be given the instruction when it deliberated. The judge added that he would reread AMCI 101 or, within reason, do anything else the appellant might suggest. Although appellant preferred the affirmative defense instruction be reread, he told the judge to reread AMCI 101, which the judge did. Appellant never moved for a mistrial until after the verdict. By then, appellant's motion was untimely. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). In addition, the appellant cannot agree with a ruling of the trial court and then attack that ruling on appeal. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).

Appellant next argues his statement should have been suppressed by the trial court because the statement was the product of an illegal stop and detention. Several days after an arrest warrant was issued for appellant for his role in the Findley and Fowler homicides, appellant was eventually found with a friend who was...