Whiteside v. State

• Decision Date: 22 September 2011
• Docket Number: No. CR 10–1200.,CR 10–1200.
• Parties: Lemuel Session WHITESIDE, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 371

383 S.W.3d 859

Lemuel Session WHITESIDE, Appellant

v.STATE of Arkansas, Appellee.

No. CR 10–1200.

Supreme Court of Arkansas.

Sept. 22, 2011.

J. Thomas Sullivan and Mark F. Hampton, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

Jessica R. Feierman, Juvenile Law Center, for amicus curiae Juvenile Law Center.

Cheryl V. Barnard, Arkansas Public Defender Commission, for amicus curiae Arkansas Public Defender Commission.

Mark F. Hampton, J. Thomas Sullivan and Cheryl V. Barnard, Little Rock, AR, Jessica R. Feierman, Philadelphia, PA, for appellant.

ROBERT L. BROWN, Justice.

Appellant Lemuel Session Whiteside,¹ a juvenile who was seventeen at the time the offense was committed, was convicted of capital-felony murder and aggravated robbery in connection with the robbery and death of James London. He was sentenced to life in prison without parole for the capital-murder conviction and thirty-five years in prison for the aggravated robbery. He was also given a fifteen-year sentencing enhancement for employing a firearm in connection with the aggravated robbery. He appeals the judgment against him on five grounds.

The following pertinent testimony surrounding these offenses was presented at Whiteside's trial. Cynthia Arrington testified that on January 28, 2009, Whiteside and Cambrin Barnes picked her up from school and took her to Barnes's house, where she intended to meet her boyfriend and Barnes's cousin, Reginald James. Arrington testified that upon arriving at Barnes's house, Whiteside received a telephone call from his mother. During this telephone conversation, she stated, Whiteside asked his mother if she wanted him to come over and rob someone. After this conversation ended, Whiteside called his girlfriend, Leanna Talley, at her job and told her that there was a man at his mother's house with $8,000 and that she needed to pick him up and take him over there because he was going to “hit a lick,” which was a slang term for a robbery.

Talley testified that she left work after that telephone call, picked Whiteside up at Barnes's house, and took him to his mother's house. She stated that Whiteside went inside the house for about five minutes, while Talley waited in the car. When he came out, Whiteside told Talley to drive back to Barnes's house. She testified that she drove him back to Barnes's house where they picked up Barnes and Arrington. She added that Whiteside then told her to return to his mother's house. Arrington testified that during this ride over to Whiteside's mother's house, she saw Whiteside with a gun.

According to Talley, Whiteside and Barnes went inside his mother's house but came out after about five minutes and told her to drive off. She said that Whiteside said to her “that man was real scared” and that “[i]f my mom hadn't stopped me, you know, then we would have robbed him.” Arrington confirmed Talley's version of events and also testified that Whiteside directed Talley to turn around and go back to the house because “that person [London] is scared and he is about to empty his pockets.” Arrington added that Whiteside told Barnes that they were going to catch the man coming out of the house and were going to take his money. As they were headed back to the house the second time, she stated that she saw Whiteside pass the .40–caliber handgun to Barnes in the backseat. She next testified that Whiteside directed Barnes to stand outside in front of the bushes while he went inside to get the man to come out. Arrington claimed that she saw Barnes with the gun as Whiteside and Barnes got out of the car the second time.

Talley further maintained that Whiteside entered the house and that Barnes stayed outside in front of the bushes. She testified that a few minutes later London left the house, followed by Whiteside. Arrington stated that she saw Whiteside push London up against an outside wall and grab his shirt, while Barnes was pointing the gun at London. She overheard London beg for his life and offer to give the boys everything he had. Arrington next testified that she saw London break away from Whiteside, rush toward Barnes, and Barnes shoot him.

Arrington testified that after London was shot, she saw him run and then collapse in a neighbor's front yard. According to Arrington, both Barnes and Whiteside ran back to the car but only Barnes got in. She testified that Barnes told Talley to “go, go, go” and that Whiteside was going back to get the money from London. According to Talley, Barnes did not have any money on him when he got back into the car. Stan Wilhite, a member of the crime scene investigation unit of the Little Rock Police Department, testified that a .40 caliber shell casing, but no cash, was collected from the crime scene.

In a felony information filed on March 27, 2009, Whiteside was charged with capital-felony murder and aggravated robbery in the robbery and death of James London.² During the ensuing trial, Whiteside moved for a directed verdict and argued that the State's evidence failed to demonstrate that Whiteside caused London's death in the course of committing aggravated robbery. The motion was denied by the trial court. The jury subsequently returned a verdict of guilty for capital-felony murder and aggravated robbery, and Whiteside was sentenced as already referenced in this opinion.

I. Sufficiency of the Evidence

Whiteside's first point on appeal is a challenge to the sufficiency of the evidence supporting his capital-felony murder conviction. He asserts that there was no evidence introduced by the State to show that he aided, solicited, induced, or commanded the commission of the murder. He further argues that his action in giving the gun to Barnes, an act he concedes in his brief, undoubtedly facilitated the commission of the aggravated robbery but in no way facilitated Barnes's act of shooting London, which he describes as “reflexive.” He also advances the argument that his conviction for capital-felony murder must not stand because the evidence fails to show that he had “any greater intent than to assist in the commission of the underlying felony.”

A challenge to the sufficiency of the evidence is an assertion that the verdict was not supported by substantial evidence. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008). This court has held that substantial evidence is evidence that is forceful evidence enough to compel a conclusion one way or the other beyond speculation or conjecture. Flowers v. State, 373 Ark. 127, 282 S.W.3d 767 (2008). On review, the appellate court views the evidence in the light most favorable to the verdict and considers only evidence that supports the verdict. Id.

The capital-murder statute in the Arkansas Criminal Code provides in pertinent part that:

(a) A person commits capital murder if:

(1) Acting alone or with one (1) or more persons:

(A) The person commits or attempts to commit ... aggravated robbery ... and

(B) In the course and furtherance of the felony or the immediate flight from the felony, the person or an accomplice causes the death of a person under circumstances manifesting extreme indifference to the value of human life.

....

(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in the homicidal act's commission.

Ark.Code Ann. § 5–10–101 (Repl.2009).

A person commits robbery under the Arkansas Criminal Code if “with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.” Ark.Code Ann. § 5–12–102 (Repl.2006). For aggravated robbery, a person must be: (1) armed with a deadly weapon; (2) represent by word or conduct that he is armed with a deadly weapon; or (3) inflict or attempt to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5–12–103 (Repl.2006).

An accomplice to the commission of an offense under the Arkansas Criminal Code is one who, with the purpose of promoting or facilitating the offense:

(1) Solicits, advises, encourages, or coerces the other person to commit the offense;

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or

(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.

Ark.Code Ann. § 5–2–403(a) (Repl.2006); see also Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000).

This court has held that there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Lawshea v. State, 2009 Ark. 600, 357 S.W.3d 901. We have further held that when two people assist one another in the commission of a crime, each is an accomplice and is criminally liable for the conduct of both. Id. One cannot disclaim accomplice liability simply because he or she did not personally take part in every act that combined to make up the crime as a whole. Id. This court, in addition, has held that in order to sustain a conviction for capital-felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing itself so long as he was an accomplice to, and had the requisite intent for, the underlying felony. See Miles v. State, 350 Ark. 243, 248–49, 85 S.W.3d 907, 911 (2002); see also Arnett, 342 Ark. at 72, 27 S.W.3d at 724.

Whiteside admits his status as an accomplice to the aggravated robbery that culminated in the murder of London. He asserts, nevertheless, that he was not an accomplice to the homicidal act because he did not in any way solicit, command, induce, procure, counsel, or aid in the...