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Elgin Gregory KING v. STATE of Arkansas
CR 95-1175___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered March 11, 1996
1. Appeal & error -- sufficiency of evidence considered first. --
Preservation of appellant's right to freedom from double
jeopardy requires that the appellate court consider a
challenge to the sufficiency of the evidence prior to
considering alleged trial error; in determining the
sufficiency question, the appellate court disregards any
alleged trial errors, because to do otherwise would result in
avoidance of the sufficiency argument by remanding for retrial
on other grounds.
2. Appeal & error -- denial of directed verdict treated as
challenge to sufficiency of evidence -- test for determining
sufficiency of evidence. -- The appellate court treats the
denial of a motion for directed verdict as a challenge to the
sufficiency of the evidence; the test for determining the
sufficiency of the evidence is whether there is substantial
evidence to support the verdict; substantial evidence must be
forceful enough to compel a conclusion one way or the other
beyond suspicion and conjecture; on appellate review, it is
only necessary to ascertain that evidence which is most
favorable to appellee, and it is permissible to consider onlythat evidence which supports the guilty verdict.
3. Appeal & error -- substantial evidence supported jury's
verdict -- trial court did not err in denying motion for
directed verdict. -- Where the evidence presented at trial
showed that the victim suffered ten separate gunshot wounds;
that the source of the gunshots either came from two shooters
or one shooter who fired from two positions; that a bullet
found in the victim's body was fired from a weapon that came
into police custody; that a bullet recovered from the victim's
head was the same type of bullet as bullets recovered by
police from appellant's grandmother's house; that a rubber
mask was discovered at the site where the victim's body was
found; that a witness identified appellant as one of the two
persons who abducted the victim at gunpoint just minutes
before the witness heard gunshots; that the witness's
identification of appellant was based on his knowing appellant
for most of his life, recognizing the clothes he was wearing
hours prior to the crime, and recognizing appellant's voice;
that the witness remembered appellant wearing a costume mask
and brandishing a semi-automatic weapon when the victim was
abducted, the supreme court concluded that substantial
evidence supported the jury's verdict and that the trial courtdid not err in denying the motion for directed verdict.
4. Criminal law -- accomplice -- defendant's burden to prove. --
The defendant bears the burden of proving that a witness is an
accomplice.
5. Criminal law -- accomplice defined. -- An accomplice is one
who, with the purpose of promoting or facilitating the
commission of an offense, either solicits, advises,
encourages, or coerces another person to commit the offense,
aids, agrees to aid, or attempts to aid the other person in
planning or committing the offense, or, having a legal duty to
prevent the offense, fails to make a proper effort to prevent
the commission of the offense; one's status as an accomplice
is a mixed question of law and fact; one's presence at the
crime scene or failure to inform law enforcement officers of
a crime does not make one an accomplice as a matter of law.
6. Criminal law -- accomplice -- facts did not show conclusively
that witness was an accomplice -- trial court correctly
refused to declare witness an accomplice as matter of law. --
Where the facts did not show conclusively that a witness was
an accomplice, the supreme court held that the trial court wascorrect in refusing to declare him an accomplice as a matter
of law.
7. Witnesses -- witness's status as accomplice is mixed question
of law and fact -- when question must be submitted to jury. --A witness's status as an accomplice is a mixed question of law
and fact; where the status of a witness presents issues of
fact, the defense is entitled to have the question submitted
to the jury; the question must be submitted to the jury where
there is any evidence to support a jury's finding that the
witness was an accomplice.
8. Witnesses -- witness's testimony created fact question
regarding his status -- trial court erred in refusing to give
instruction on disputed accomplice status -- case reversed and
remanded for retrial. -- The supreme court determined that a
witness's testimony at trial created a fact question regarding
his status as an accomplice where he knew that there was ill
will between the victim and the co-defendants, was offered
rock cocaine in return for luring the victim to the co-defendant's reach, and initially denied knowledge of the co-defendants' involvement in the crime; on this evidence, the
supreme court held that the trial court erred in refusing togive a proffered instruction on the corroboration of disputed
accomplice status; due to the error, the jury was not given an
opportunity to consider whether the witness was an accomplice
and, if so, whether there was sufficient corroborating
evidence presented; the supreme court reversed the judgment of
conviction and remanded for a retrial.
9. Criminal law -- accomplice -- remand for retrial appropriate
where witness's status presents jury question and jury not
given opportunity to consider issue. -- Although, where there
is insufficient evidence to corroborate an accomplice's
testimony, the only remedy is reversal and dismissal due to
jeopardy considerations, where the witness's status as an
accomplice presents a jury question, and the jury was
erroneously not given the opportunity to pass on that
question, remand for retrial is the appropriate remedy;
dismissal is not required in such cases because the jeopardy
clause has not been violated; error in failing to instruct the
jury does not relate to sufficiency of the evidence and the
jeopardy clause; retrial is the proper remedy where, as here,
the jury was not given the chance to consider the question of
the status of the accomplice, for it is quite possible for the
jury to conclude either that the witness was not an accompliceor that there was sufficient corroborating evidence.
Appeal from Pulaski Circuit Court, Sixth Division; David
Bogard, Judge; reversed and remanded.
William R. Simpson, Jr., Public Defender, by: Sally Collins,
Dep. Public Defender.
Winston Bryant, Att'y Gen., by: Brad Newman, Asst. Att'y
Gen., for appellee.
Donald L. Corbin, Justice.
The judgment of conviction is reversed due to the error in
refusing to give AMI Crim. 2d 403. The case is remanded for
retrial.
Associate Justice Donald L.
Corbin, 3-11-96 *ADVREP7*
ELGIN GREGORY KING,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE,
CR 95-1175
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, SIXTH DIVISION,
NO. CR 93-2979.B,
HON. DAVID BOGARD, JUDGE,
REVERSED AND REMANDED.
Appellant, Elgin Gregory King, appeals the judgment of the
Pulaski County Circuit Court convicting him of first-degree murder
and sentencing him to forty years imprisonment. For reversal,
appellant contends first, that the trial court erred in failing to
declare one of the state's witnesses an accomplice as a matter of
law or in failing to instruct the jury on the accomplice question,
and second, that there was insufficient evidence of guilt. We find
the trial court erred in refusing to instruct the jury on the
accomplice question and therefore reverse and remand. We address
the trial court's ruling on accomplice status as a matter of law
for the benefit of the trial court as an issue that is likely to
arise on retrial.
Appellant and Kenneth Lamont Slocum were charged by felony
information with the capital murder of Willie Simpkins. The cases
were severed. Appellant was tried by a jury and convicted of the
lesser-included offense of first-degree murder.
SUFFICIENCY OF THE EVIDENCE
Preservation of appellant's right to freedom from double
jeopardy requires that we consider a challenge to the sufficiency
of the evidence prior to considering alleged trial error. Young v.
State, 316 Ark. 225, 871 S.W.2d 373 (1994); Lukach v. State, 310
Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681
S.W.2d 334 (1984) (citing Burks v. United States, 437 U.S. 1
(1978)). Therefore, although raised as the final point of appeal,
we consider the sufficiency argument prior to considering the other
points relating to alleged trial error. Young, 316 Ark. 225, 871
S.W.2d 373. In determining the sufficiency question, we disregard
any alleged trial errors, because to do otherwise would result in
avoidance of the sufficiency argument by remanding for retrial on
other grounds. Id. (citing Harris, 284 Ark. 247, 681 S.W.2d 334).
At the close of the state's case, appellant moved for a
directed verdict based on insufficient evidence, arguing
specifically that the state had failed to prove premeditation and
deliberation, the correct date of death, and that appellant caused
the death of the victim. Appellant also moved for direction of a
verdict due to lack of corroborating evidence of the testimony of
Vernon Scott, the state's witness who appellant contends is an
accomplice. Appellant renewed these arguments at the close of all
the evidence. On appeal, appellant asserts simply that there was
insufficient evidence of guilt of first-degree murder, arguing that
Scott's testimony resulted in speculation and conjecture and
therefore does not constitute substantial evidence. This latterargument is all that we address, as appellant has abandoned on
appeal the other arguments raised below. Dillard v. State, 313
Ark. 439, 855 S.W.2d 909 (1993).
We treat the denial of a motion for directed verdict as a
challenge to the sufficiency of the evidence. Lukach, 310 Ark.
119, 835 S.W.2d 852. The test for determining the sufficiency of
the evidence is whether there is substantial evidence to support
the verdict; substantial evidence must be forceful enough to compel
a conclusion one way or the other beyond suspicion and conjecture.
Id. On appellate review, it is only necessary for us to ascertain
that evidence which is most favorable to appellee, and it is
permissible to consider only that evidence which supports the
guilty verdict. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).
The following evidence, as viewed most favorably to appellee,
was presented at trial. The medical examiner testified that the
victim suffered ten separate gunshot wounds. The source of the
gunshots either came from two shooters, or one shooter who fired
from two positions. A possible murder weapon came into police
custody, a .380-caliber Lorcin semi-automatic pistol. The Lorcin
had previously been reported stolen by a Marvin Baccus, who
purchased the gun. A handwriting expert from the Internal Revenue
Service testified that the person who signed the name of Marvin
Baccus when purchasing the gun was Shelby Baccus. A firearms
toolmark examiner from the Arkansas State Crime Laboratory
testified that a bullet found in the victim's body was fired from
the .380-caliber Lorcin. The same firearms examiner testified thata .45-caliber bullet recovered from the victim's head was the same
type of bullet as bullets recovered by police from appellant's
grandmother's house. He explained the bullets were similar in that
they were both full-metal jacketed, both weighed 230 grains, and
both had an exposed lead base which is characteristic of any number
of brands. At the scene where the victim's body was found, police
found a rubber mask. Scott identified appellant as one of the two
persons who abducted the victim at gunpoint just minutes before
Scott heard gunshots. His identification of appellant was based on
his knowing appellant for most of his life, recognizing the clothes
he was wearing hours prior to the crime, and recognizing
appellant's voice. Scott remembered appellant wearing a costume
mask and brandishing a semi-automatic weapon when the victim was
abducted.
We conclude that the foregoing constitutes substantial
evidence in support of the jury's verdict. The trial court ruled
that Scott was not an accomplice as a matter of law; therefore,
there was no requirement of corroborating evidence to send the case
to the jury for deliberation. Accordingly, the trial court did not
err in denying the motion for directed verdict.
ACCOMPLICE AS A MATTER OF LAW
Appellant contends the trial court erred in failing to declare
Scott an accomplice as a matter of law. The trial court held a
hearing on appellant's motion in limine to have Scott so declared.
At the hearing, Scott testified that, approximately thirty minutes
to an hour before the murder, he was approached by appellant's co-defendant, Slocum, who asked appellant if he could "get Willie
[Simpkins] out." Scott stated that he responded affirmatively, and
Slocum then promised to "take care of [Scott]." Scott continued
that he then lured the victim to a nearby site, the home of Louis
Hattison, where he and the victim together consumed forty ounces of
beer and crack cocaine worth $40.00. Scott stated that appellant
and Slocum later appeared at Hattison's home, masked and
brandishing weapons, and abducted the victim from the house. Scott
testified that when he gave his first statement to the police, he
denied seeing who entered Hattison's home and abducted the victim.
Scott explained his denial as being protective of himself and his
family. The state conceded that Scott made the denial in his first
statement. Scott also testified that he received cash payments
from the North Little Rock Police Department prior to and after the
date appellant and Slocum were charged in this case. Most
significantly, however, Scott stated at the pretrial hearing on the
motion in limine that he did not know the reason Slocum had asked
him to lure the victim to Hattison's house.
After hearing the foregoing evidence, the trial court stated
that it had not heard any evidence that Scott had knowledge of the
crime that was going to occur. Accordingly, the trial court
refused appellant's request to declare Scott an accomplice as a
matter of law. Appellant renewed this request at a subsequent
pretrial hearing; again, the trial court denied the request on the
same basis. We find no error in these two rulings.
The defendant bears the burden of proving that a witness is an
accomplice. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996). An
accomplice is one who, with the purpose of promoting or
facilitating the commission of an offense, either solicits,
advises, encourages, or coerces another person to commit the
offense, aids, agrees to aid, or attempts to aid the other person
in planning or committing the offense, or, having a legal duty to
prevent the offense, fails to make a proper effort to prevent the
commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993).
One's status as an accomplice is a mixed question of law and fact.
Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). One's presence at
the crime scene or failure to inform law enforcement officers of a
crime does not make one an accomplice as a matter of law. Pilcher
v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (citing Spears v.
State, 280 Ark. 577, 660 S.W.2d 913 (1983)). The facts do not show
conclusively that Scott was an accomplice. The trial court was
therefore correct in refusing to declare him an accomplice as a
matter of law. Cole, 323 Ark. 8, 913 S.W.2d 255; Pilcher, 303 Ark.
335, 796 S.W.2d 845.
FAILURE TO GIVE PROFFERED INSTRUCTIONS ON STATUS AS ACCOMPLICE
Appellant proffered AMI Crim. 2d 402, entitled "Accomplice
Status Undisputed -- Corroboration," and AMI Crim. 2d 403, entitled
"Accomplice Status in Dispute -- Corroboration," which the trial
court refused without explanation. Appellant argues the trial
court's ruling was error. Our law is well-settled that a witness's
status as an accomplice is a mixed question of law and fact, andthat when the status of a witness presents issues of fact, the
defense is entitled to have the question submitted to the jury.
Earl, 272 Ark. 5, 612 S.W.2d 98; Jackson v. State, 193 Ark. 776,
102 S.W.2d 546 (1937). The question must be submitted to the jury
where there is any evidence to support a jury's finding that the
witness was an accomplice. Id.
Scott testified at trial, consistent with his testimony at the
hearing on the motion in limine. His trial testimony, however,
revealed the following additional facts that were not revealed at
the hearing. Appellant and Slocum are cousins. Scott was "hanging
out" on a street corner in his neighborhood when Slocum approached
him and asked him to lure the victim to Hattison's house. With
Slocum were Shelby Baccus and Vida Davis. At that time, appellant
was not with Slocum and the two others; rather, he was on his
grandmother's porch, which is across the street from the "hang-out"
corner. Scott explained Slocum's statement that Slocum would take
care of Scott to mean that, in exchange for Scott luring the victim
to Hattison's home, Slocum would pay Scott in rock cocaine. Scott
estimated he received rock cocaine worth $40.00 from Slocum. Scott
testified that, approximately five minutes after appellant and
Slocum left Hattison's home with the victim, he heard a flurry of
about ten gunshots. The first thought that came to Scott's mind
upon hearing the shots was, "[t]hey done shot that boy." Scott
explained the cash payments he received from the North Little Rock
Police were for food and lodging for him and his parents to
relocate after Scott told what he knew about the victim's murder tothe police. Most significantly, however, Scott stated that the
reason the victim was killed was because the victim possessed
knowledge that would implicate Slocum's brother in another murder
case. Scott testified that to avoid the victim's implication of
Slocum's brother, "they had to eliminate Willie [Simpkins], I
imagine."
Scott's testimony at trial creates a fact question as to his
status as an accomplice. He knew there was ill will between the
victim and the co-defendants. He was offered rock cocaine in
return for luring the victim to the co-defendant's reach. He
initially denied knowledge of the co-defendants' involvement in the
crime. On this evidence, some of which was not known until Scott
testified at trial, the trial court erred in refusing to give the
proffered instruction AMI Crim. 2d 403. Due to the error, the jury
was not given an opportunity to consider whether Scott was an
accomplice and, if so, whether there was sufficient corroborating
evidence presented. We therefore reverse the judgment of
conviction and remand for a retrial.
We are well aware that when there is insufficient evidence to
corroborate an accomplice's testimony, the only remedy is reversal
and dismissal due to jeopardy considerations. Foster v. State, 290
Ark. 495, 720 S.W.2d 712 (1986), supplemental opinion on denial of
reh'g, 290 Ark. 498, 722 S.W.2d 869, cert. denied, 482 U.S. 929
(1987). However, in such cases, the witness's status as an
accomplice is not a fact question. See, id. When, as in the
present case, the witness's status as an accomplice presents a juryquestion and the jury was erroneously not given the opportunity to
pass on that question, remand for retrial is the appropriate
remedy. See Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890
(1984). Dismissal is not required in such cases because the
jeopardy clause has not been violated; error in failing to instruct
the jury does not relate to sufficiency of the evidence and the
jeopardy clause. See United States v. Miller, 952 F.2d 866 (5th
Cir.), cert. denied, 112 S. Ct. 3029 (1992) (citing Forman v.
United States, 361 U.S. 416 (1960)). Retrial is the proper remedy
where, as here, the jury was not given the chance to consider the
question of the status of the accomplice, for it is quite possible
for the jury to conclude either that the witness was not an
accomplice or that there is sufficient corroborating evidence.
The judgment of conviction is reversed due to the error in
refusing to give AMI Crim. 2d 403. The case is remanded for
retrial.
--
CR 95-1175