Williams v. State
| Decision Date | 21 February 2002 |
| Docket Number | No. CR 01-364.,CR 01-364. |
| Citation | 67 S.W.3d 548,347 Ark. 728 |
| Parties | Kenneth D. WILLIAMS v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Montgomery, Adams & Wyatt, by Dale E. Adams, Little Rock, for appellant.
Mark Pryor, Att'y Gen., by Michael C. Angel and Jeffrey A. Webber, Ass't Att'ys Gen., Little Rock, for appellee.
Kenneth D. Williams was convicted of capital-felony murder and theft of property. He was sentenced to death on the capital-murder conviction and to forty years on the theft conviction under habitual-offender enhancement. While the elements of capital felony murder may be met by sufficient proof of any of the listed felonies in the statute, the jury found by separate unanimous verdicts that the State had proven both the underlying felony of first-degree escape and the underlying felony of aggravated robbery.
We take jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(a)(2). On appeal, Williams raises twelve points for reversal. We determine additional points merit discussion, and that Williams correctly asserts that the issue of escape in the first degree as an underlying felony in capital murder was submitted to the jury in error. However, we hold the capital-murder conviction and sentence of death may be affirmed on the underlying felony of aggravated robbery, and that the remaining points lack merit. Williams's other convictions and sentence are affirmed.
This case involves an escape from the Cummins unit of the Arkansas Department of Correction and a number of crimes, including the murder of Cecil Boren near the prison and the death of Michael Greenwood in Missouri. On September 15, 1999, Williams arrived at the Cummins unit of the Arkansas Department of Correction. Earlier this same day he was sentenced to life without parole on convictions of capital murder, attempted capital murder, kidnapping aggravated robbery, theft, and arson in Jefferson County. These convictions arose from events that occurred on December 13, 1998.
Earlier on August 26, 1999, Williams had been convicted of aggravated robbery, theft, kidnapping, and arson in Jefferson County. These convictions arose from events that occurred on December 5, 1998.
Williams's convictions and sentences arising from the December 5, 1998, crimes were affirmed by the court of appeals on November 29, 2000. His convictions and sentences arising from the crimes of December 13, 1998, were affirmed by this court on February 2, 2001.
On October 3, 1999, Cummins's Warden Warren Dale Reed received a call about 7:15 p.m. from his chief of security, Captain Donald Tate, telling him that Williams was missing. Major Wendell Taylor, the unit's tracker, began a "drag around the compound" using dogs to try to pick up Williams's scent. This attempt was unsuccessful because too much time had passed since Williams's escape that morning. Emergency notifications were commenced.
The Department of Correction determined that Williams was released from his barracks that morning at 7:27 on a "religious call." It was determined that this allowed Williams to get into the area where the slop tanks for the kitchen are kept. These are devices that are used to hold, cook, and transport slop to hogs outside the prison. The slop tanks are 500 gallon tanks that are large enough for a man to fit into. The primary tank had a grating welded over the top opening. However, the alternate slop tank was in use due to a flat tire on the primary tank trailer. The secondary tank had no grate over the opening. The Department of Correction determined Williams got down inside this tank and was carried outside the prison confines when the tank was taken from the prison by the Department of Correction. Once outside the prison confines, Williams jumped from the tank in transit and hid in a ditch. He hid there for some time because local farmer Jimmy Dreher testified that that morning at about 9:42 he saw a man running across Highway 65 away from the prison. From the tracks the Department of Correction found, it appears Williams headed toward Highway 65, which took him in the direction of Cecil and Genie Boren's home. Williams's prison shirt showing his name and prison number was found a few months later hanging on a tree limb about a mile from the Boren home, substantiating his path.
Williams made it to the Boren home sometime in the morning. Earlier that morning, Genie Boren had gone to church leaving her husband Cecil Boren at home working in the yard. When she returned sometime after noon, she found he was no longer there. She called Kay McLemore, who lived about a mile from the Borens. Genie was frantic because her husband was not home, and their house had been ransacked. Kay drove over. They determined all the firearms were gone, except a muzzle loader. Kay went outside and began to look for Cecil and call for him. She found Cecil near a bayou not far from the house. He was lying face down without shoes or socks. He was dead. He had been shot seven times. Scrape marks on his body were later determined to show that his body had been dragged to that location, and that he had been shot closer to the home. A pool of blood was found closer to the home. The investigation at the Boren home revealed that Cecil Boren's wallet was missing, that other valuables from the home were missing, that some clothing had been taken, and that a number of firearms as well as Cecil Boren's truck were missing.
Eddie Gatewood was a friend of Williams, and testified that on October 3, 1999, Williams showed up at his house asking for a map. He was driving the truck that was identified as Cecil Boren's. Gatewood testified that Williams told him he had done something to someone to get the truck. Gatewood further testified that prior to this date, he had visited Williams at prison, and Williams had told him he had to get out because he could not spend his life in prison. He also testified that Williams asked him during that visit to get him some clothes, a dress, and a wig, and leave them out on the highway close to the prison.
The next day, on October 4, 1999, Cecil Boren's truck was spotted in Lebanon, Missouri, by police officer Dennis Mathis. Officer Mathis attempted to pull over the truck being driven by Williams. Initially, Williams pulled over, but he then drove off. A high-speed chase commenced involving multiple police units covering approximately sixty miles. Speeds ranged as high as 120 miles per hour. Williams was only stopped when he struck a water truck that was turning left in front of him. Williams struck the truck in the cab. The driver, Michael Greenwood, was ejected and killed. Williams's truck was disabled by the collision. He then fled on foot before he was apprehended.
More than 114 personal items belonging to Cecil and Genie Boren were removed from Cecil's truck, including the firearms stolen from their home. At the time of his arrest, Williams was wearing Cecil's coveralls and two rings belonging to Cecil. He was also wearing clothing belonging to Genie Boren.
The State was unsuccessful in linking the firearms found to the .22 caliber fragments taken from Cecil's body. There was testimony that the fragments likely came from one of six manufacturers, including Ruger, and there was testimony that Cecil had a Ruger .22 caliber semi-automatic pistol that was not found. A clip to a Ruger .22 automatic was found in the truck when Williams was apprehended.
Dr. Frank Peretti, the State's medical examiner, testified that Cecil had suffered seven gunshot wounds. According to Dr. Peretti's testimony, all the wounds were inflicted from some distance, and the cause of death was the gunshot wounds.
Williams asserts that the trial court erred in denying his motion for a directed verdict on first-degree escape. A motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).
The jury found that the elements of first-degree escape were present. This was one of two felonies that the State relied upon in charging and prosecuting Williams for capital-felony murder under Ark.Code Ann. § 5-10-101(a)(1) (Repl. 1997). Williams now argues that the trial court was in error in failing to grant his directed-verdict motion on this issue because the State failed to prove the elements of first-degree escape in that the State failed to prove the threat of, or use of, a deadly weapon in Williams's escape from a correctional facility. As noted, Williams fled the penitentiary by climbing in a hog-slop tank and waiting to be hauled outside where he jumped from the tank. From there he went on foot to the Boren home where he robbed and killed Cecil Boren.
The facts show the murder of Cecil Boren occurred at least five miles from the prison and took place at least three hours after Williams departed the prison in the slop tank. According to the testimony of Warden Reed, prison records showed Williams was present at the 6:00 a.m. count. Again, according to Reed's testimony, Williams left his barracks at a 7:27 a.m. church call. Reed testified that this allowed Williams to get into a kitchen area and get into the slop tank. Reed further testified that the slop tank left the prison at 8:03 a.m., and that foot tracks were later located about 3/4 mile from the prison where the road turned. It was here, Reed concluded, that Williams jumped from the tank. Reed also testified that knee prints were found at the road ditch where Williams came to rest from his jump. Reed further testified that there were additional tracks showing Williams headed off in the direction of Highway 65 and that this was the first area where a person could hide during the day and effect an escape. According to Major Wendell Taylor, the ditch was about four feet deep with grass to either...
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