Williams v. State

• Decision Date: 29 March 2017
• Docket Number: No. CR–16–620,CR–16–620
• Citation: 517 S.W.3d 446
• Parties: Dameion WILLIAMS, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

517 S.W.3d 446

Dameion WILLIAMS, Appellant
v.
STATE of Arkansas, Appellee

No. CR–16–620

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: March 29, 2017

Theodis N. Thompson, Jr., for appellant.

Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

WAYMOND M. BROWN, Judge

Appellant appeals from his conviction by jury trial of aggravated robbery, attempted murder in the first degree, and battery in the first degree. On appeal, he argues that the circuit court erred in denying his motions (1) to suppress, (2) to require his codefendant to testify at his trial, and (3) to give a jury instruction allowing jurors to make a negative inference due to a missing video. We affirm.

On October 23, 2014, appellant was charged by information with aggravated robbery, attempted murder in the first degree, and battery in the first degree for events that occurred on October 22, 2014. On June 29, 2015, appellant filed a motion to suppress the photo lineup evidence, asserting that because the victim was shown only one photo before offering an identification, her out-of-court identification violated the United States and Arkansas Constitutions, specifically, the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.¹ On December 3, 2015, appellant filed a motion to sever his trial from that of his then-codefendant Zach Stokes, who was facing the same criminal charges, and who appellant asserted knew the true identity of the perpetrator of the crime, but "intended not to testify as a co-defendant." On December 7, 2015, appellant filed a motion for disclosure of any favorable evidence in the possession, custody, or control of appellee. The circuit court entered an order on December 7, 2015, granting appellant's motion for severance.

A jury trial on the matter was held on December 7, 8, and 9, 2015. Prior to the start of trial, the circuit court addressed

517 S.W.3d 448

still pending matters, including appellant's motion to suppress the victim's out-of-court identification of him, appellant's subpoena of Stokes,² and appellant's proposed jury instruction that a missing video may be given a negative inference. Regarding testimony of Stokes, appellant argued that Stokes should be required to testify because his intended line of questioning—whether Stokes had any "contact or dealings" with appellant on October 22, 2014—did not violate Stokes's Fifth Amendment right against self-incrimination. Regarding the jury instruction, appellant argued that the missing video was "best evidence"—despite a copy thereof not existing—and so the jury should be told it could make a negative inference from the absence of the video. The circuit court denied appellant's motion to require Stokes to testify, and denied his jury instruction motion, but stated that it would "re-visit [the jury-instruction issue] again, but [it has] got to hear some proof." However, noting that appellant had failed to seek a ruling or hearing on the matter until the day of trial despite knowing the motion was outstanding when he took the case,³ the circuit court immediately held a hearing on the motion to suppress; the testimony was as follows.

Detective Steve Barker, of the Russellville Police Department, testified that he was called out on a case involving a shooting on October 22, 2014. He made contact with the victim at the emergency room of the local hospital. She was "seriously injured from a gunshot wound." She identified her assailants as Zach Stokes and "Demo"; she "just kept saying Zach and Demo shot me." She did not know the full name of the second man or "anything other than Demo." The victim said she "knew [Stokes and Demo] from the neighborhood." Detective Barker, being "familiar with Demo" and the "street name [Demo]" through his work on different calls and cases while working with the drug task force, "knew Demo was Dameion Williams." So, on the next day, he took a single photograph of appellant to the victim and "asked her if that was who she meant when she said Demo." He knew the photo of appellant was "Demo" but he "wanted to make sure that Demo was Dameion Williams. That the Demo [he] knew was the Demo that she knew." The victim identified the appellant as "Demo" from the single photograph. Regarding his process of obtaining an identification, Detective Barker stated:

If the suspect is named, I have shown them a single photo just to confirm that is who they are. If they say, "John Brown" and I think I know who the John Brown they are talking about [is], I will show them a photo of John Brown to see if it is the same John Brown. Now if they just give me a description of a suspect, then of course I would need to do the fixed photo lineup.

Appellant testified on his own behalf. He denied any interactions with Detective Barker, admitted seeing the victim "around the hood every day" though he "[did] not hang out with her[,]" and stated that he knew Stokes. Specifically, he denied having "any face to face interaction" with the victim though he saw her when he was visiting her "next door" neighbor. He

517 S.W.3d 449

stated that he was being "mistaken for somebody else, Delow."

At the conclusion of appellant's testimony, the circuit court denied appellant's motion to suppress. It specifically stated that

there was no suggestion in the sense that the officer put the idea of the identification in Ms. Brown's head. She had already identified her assailant prior to the officer interviewing her. He was confirming whether this was the same Demo he knew in providing a photograph, and he confirmed that.

A jury trial was held, at the conclusion of which appellant was found guilty of aggravated robbery, attempted murder in the first degree, and battery in the first degree. He was concurrently sentenced on all three charges to 420 months' imprisonment. This timely appeal...