Matthews v. State

Grady MATTHEWS v. STATE of Arkansas

CA CR 96-637                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                Opinion delivered March 12, 1997


1.   Evidence -- sufficiency of -- factors on review --
     circumstantial evidence may constitute substantial evidence. -
     - In reviewing the sufficiency of the evidence in criminal
     cases, the appellate court considers the evidence in the light
     most favorable to the appellee and affirms if there is
     substantial evidence to support the verdict; substantial
     evidence is that which is of sufficient force and character
     that it will, with reasonable certainty and precision, compel
     a conclusion one way or the other, without resorting to
     speculation or conjecture; circumstantial evidence alone may
     constitute substantial evidence when every other reasonable
     hypothesis consistent with innocence is excluded; once the
     evidence is determined to be sufficient to go to the jury, the
     question of whether the circumstantial evidence excludes any
     other hypothesis consistent with innocence is for the jury to
     decide; on appellate review, it is permissible for the court
     to consider only that evidence that supports the guilty
     verdict. 

2.   Criminal law -- each conspirator responsible for everything
     done that follows directly as natural probable consequence --
     accomplice defined. --  Each conspirator or participant in the
     execution or attempted execution of a crime is responsible for
     everything done that follows directly as a probable and
     natural consequence; 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.  

3.   Criminal law -- evidence sufficient to show appellant or one
     of his accomplices shot victim -- appellant's conviction
     supported by substantial evidence. -- Where one codefendant
     testified that one of his accomplices fired his weapon when
     the victim was killed, both the appellant and that codefendant
     testified that their accomplice was carrying a .38-caliber
     handgun on the night in question, and it was .38-caliber
     bullets that were recovered from the victim's body, and the
     testimony of the other witnesses also indicated that only the
     appellant and his codefendants had weapons drawn on the night
     in question, there was both direct testimony and
     circumstantial evidence to indicate that it was appellant's
     accomplice who killed the victim; there was substantial
     evidence to support the appellant's conviction.


     Appeal from Jefferson Circuit Court; H.A. Taylor, Judge;
affirmed.
     Maxie G. Kizer, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     John B. Robbins, Chief Judge.
     Appellant Grady Matthews was charged with capital felony
murder in the shooting death of Don Wyrick.  Appellant was
convicted as an accomplice to first-degree murder and was sentenced
to twenty years in the Arkansas Department of Correction. 
Appellant contends on appeal that the evidence is insufficient to
support his conviction.  We affirm.
     In reviewing the sufficiency of the evidence in criminal
cases, we consider the evidence in the light most favorable to the
appellee and affirm if there is substantial evidence to support the
verdict.  Boyd v. State, 54 Ark. App. 17, 922 S.W.2d 357 (1996). 
Substantial evidence is that which is of sufficient force and
character that it will, with reasonable certainty and precision,
compel a conclusion one way or the other, without resorting to
speculation or conjecture. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).  Circumstantial evidence alone may constitute
substantial evidence when every other reasonable hypothesis
consistent with innocence is excluded.  Walker v. State, 324 Ark.
106, 918 S.W.2d 172 (1996).  Once the evidence is determined to
be sufficient to go to the jury, the question of whether the
circumstantial evidence excludes any other hypothesis consistent
with innocence is for the jury to decide.  Williams v. State, 325
Ark. 432, 930 S.W.2d 297 (1996).  On appellate review, it is
permissible for this court to consider only that evidence that
supports the guilty verdict.  Choate v. State, 325 Ark. 251, 925 S.W.2d 409 (1996).
     Arkansas Code Annotated section 5-10-102 (Repl. 1993) defines
murder in the first degree as follows:
       (a) A person commits murder in the first degree if:
       (1) Acting alone or with one (1) or more other persons,
     he commits or attempts to commit a felony, and in the
     course of and in the furtherance of the felony or in
     immediate flight therefrom, he or an accomplice causes
     the death of any person under circumstances manifesting
     extreme indifference to the value of human life; or
       (2) With a purpose of causing the death of another
     person, he causes the death of another person....
Each conspirator or participant in the execution or attempted
execution of a crime is responsible for everything done that
follows directly as a probable and natural consequence.  Johnson v.
State, 252 Ark. 1113, 482 S.W.2d 600 (1972).  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).
     The evidence presented at trial showed that on May 19, 1995,
Don Wyrick was shot and killed at a residence in Pine Bluff known
as "The Hill."  Several witnesses testified that the residence was
a gambling house where people came to play cards and shoot dice. 
Several witnesses testified that, on the night in question, four
young men entered the residence and put stocking caps over their
faces.  The young men displayed handguns, stated that it was a
"stickup," and demanded that everyone get down on the floor.  John
Moore testified that he recognized the appellant as he entered the
house and identified him in court as one of the young men involved
in the robbery.
     The evidence indicated that the young men entered the house
through the living room and, while two of them guarded people in
the living room, two of the suspects went into the dining room
where a gaming table was set up.  Several witnesses testified that
the victim refused to get on the floor and began wrestling with the
appellant for the gun the appellant was holding.  The testimony
indicated that after the victim fought for appellant's gun he was
shot by Patrick Davis, one of the appellant's accomplices.  The
victim died as a result of two gunshot wounds.
     Marcus James, one of the appellant's accomplices, was called
on behalf of the State.  James testified that he, the appellant,
Patrick Davis, and Derrick Pridgeon planned to rob the gambling
house and take everyone's money.  James testified that he, the
appellant, and the two others met on the night in question about
10:30 or 11:00 p.m.  The young men organized their guns and later
left to perform the robbery.  James identified State's exhibit #5
as the .380 pistol that Derrick Pridgeon used during the robbery. 
James also identified State's exhibit #1 as the .25 pistol that the
appellant had during the robbery, which was found after the robbery
on the floor under the victim.
     James testified that the four of them entered the house, and
he and Pridgeon stopped in the living room while Davis and the
appellant went on back into the dining room area.  James testified
that appellant and the victim began struggling over the gun that
appellant was holding.  James testified that Patrick Davis then
shot his gun.
     The appellant testified in his own defense at trial.  He
admitted that they had planned for more than a week to rob the
gambling house.  Appellant testified that State's exhibit #1 was
the .25 pistol that he used during the robbery.  He testified
that he knew the victim because the victim was his girlfriend's
stepfather, and when he entered the dining room he believed the
victim recognized him.  The appellant testified that the victim
attempted to take his gun from him and a struggle ensued. 
Appellant testified that he fell to the floor during the fight and
heard two shots.  He did not see who fired the shots because he was
trying to hide his face after his stocking cap had come off.  The
appellant, Davis, and Pridgeon then fled the house, while James
remained in the home hiding under a bed.
     The expert testimony in this case indicated that the victim
was shot once in the left chest area.  A second shot hit the victim
in the right shoulder area.  Two bullets were recovered from the
victim's body that expert testimony indicated were fired from a
.38, the same type weapon Davis was carrying on the night in
question.  Dr. William Sturner, the chief medical examiner with the
Arkansas State Crime Laboratory, testified that the victim in this
case was killed as a result of the two gunshot wounds.
     The appellant specifically argues that the evidence was
insufficient to show that he or one of his codefendants shot the
victim on the night in question.  However, Marcus James testified
that Patrick Davis fired his weapon when the victim was killed. 
Both the appellant and James testified that Davis was carrying a
.38-caliber handgun on the night in question, and it was .38-
caliber bullets that were recovered from the victim's body.  The
testimony of the other witnesses also indicated that only the
appellant and his codefendants had weapons drawn on the night in
question.  There was both direct testimony and circumstantial
evidence to indicate that it was Davis, appellant's accomplice, who
killed the victim.  There is substantial evidence to support the
appellant's conviction.
     Affirmed.
     Griffen and Roaf, JJ., agree.