Tavell Martez Lawson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR00-824

JUNE 27, 2001

TAVELL MARTEZ LAWSON

AN APPEAL FROM THE DESHA APPELLANT COUNTY CIRCUIT COURT

v. [CR99-25-2A]

STATE OF ARKANSAS HONORABLE SAM POPE, APPELLEE CIRCUIT JUDGE

AFFIRMED

On January 4, 2000, appellant was found guilty of aggravated robbery and aggravated assault. Appellant was sentenced to ten years on the aggravated robbery count and two years on the aggravated assault count. The sentences were concurrent.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Appellant was furnished a copy of his counsel's brief and was give the opportunity to file a pro se brief. However, appellant has not filed a brief.

Counsel's motion was accompanied by a brief which referred to everything in therecord that might arguably support an appeal, together with an explanation of objections made by appellant and ruled on by the trial court, a record of motions and requests made by appellant and denied by the court, and a statement of reasons why counsel considers there to be nothing in the record that will support an appeal. We affirm.

On December 13, 1999, a hearing was held on appellant's Motion to Transfer to Juvenile Court. Officer Michael Donigan of the Dumas Police Department testified that he conducted the investigation of the April 11, 1999, robbery and shooting at the Triple D Liquor Store. Donigan stated that after reading him his Miranda rights, the appellant gave a custodial statement that Donigan recorded in written form. Appellant stated that he and his co-defendant encountered Geisla Cantrell as she was leaving the store, and his co-defendant fired the rifle two or three times while appellant grabbed her purse. Geisla's husband, Tommy Cantrell was shot.

The State argued that due to the violent nature of the crime the appellant should be tried as an adult. Appellant argued that he was a juvenile, having been born January 25, 1982, and that once arrested, he cooperated. The appellant also argued that he was merely an accomplice. At the conclusion of the evidence the court denied the motion to transfer.

At the jury trial, Donigan reiterated much of the testimony he gave at the hearing on the motion to transfer. Dr. Steve Asemota, a licensed general surgeon, stated that on April 11, 1999, while he was working in the emergency room, he treated Tommy Cantrell for gunshot wounds to the chest, abdomen, shoulder and arm. Dr Asemota further testified that one of Tommy Cantrell's lungs was partially collapsed and his wounds were life-threatening.

Geisla Cantrell testified that on April 11, 1999, she was working at the liquor store with her husband, Tommy Cantrell. She testified that as she was coming out of the store she saw the men running toward her and the taller one pushed her down while the other one started shooting. She also testified that her husband was shot while inside the store. Mrs. Cantrell further testified that after running off, the taller man returned for her purse. Mrs. Cantrell testified that afterwards her husband called the police and the only thing she remembers is that the men had black hands.

Eli Hudson, Jr. testified that he was the appellant's first cousin. He also testified that when he saw the appellant on April 11, 1999, he appeared out of breath. Hudson further testified that appellant admitted grabbing Mrs. Cantrell's purse, while his co-defendant fired several shots.

Tommy Cantrell testified that for the past fourteen years he has run the Triple D Liquor Store in Dumas, Arkansas. Mr. Cantrell testified that on April 11, 1999, as his wife was stepping out the store, two men came from around the corner of the building. He stated that as the men turned the corner they began shooting and that he was hit in the arm. Mr. Cantrell also stated the men "had masks on and were black persons."

At the close of the State's case appellant moved for directed verdict on the charge of aggravated robbery. The trial court denied the motion. Terri Smith testified for the defense. She testified that she was the appellant's sister-in-law and she lived in Little Rock, Arkansas. She also testified that on either April 15 or 16, 1999, appellant arrived at her residence and stayed a couple of days. At the end of his case, appellant renewed his motion for a directedverdict on the aggravated robbery charge and asked for a directed verdict on the first degree battery charge. The trial court found there was evidence to support either a robbery charge or an aggravated robbery charge and denied the motion.

Sufficiency of the Evidence

The first adverse ruling was the trial court's denial of appellant's motion for directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. See Britt v. State, 344 Ark. 13, 17, 38 S.W.3d 363, 366-67 (2001). The test for sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. See id., 38 S.W.3d at 367. When reviewing the denial of a motion for directed verdict, the evidence is viewed in a light most favorable to the State, considering only the evidence that supports the verdict, and affirming if there is substantial evidence to support the verdict. See Rose v. State, 72 Ark. App. 175, 179, 35 S.W.3d 365, 366 (2000). Evidence, whether direct or circumstantial, is substantial if it compels a conclusion one way or the other without resorting to speculation and conjecture. See Gregory v. State, 341 Ark. 243, 247, 15 S.W.3d 690, 693 (2000); Rose v. State, supra.

In this case the appellant was convicted of aggravated robbery and aggravated assault. Arkansas Code Annotated section 5-12-103 (Repl. 1997) provides:

(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he

(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or

(2) Inflicts or attempts to inflict death or serious physical injury upon another person.

A person commits aggravated assault if while "manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person." Ark. Code Ann. § 5-13-204(a) (Repl. 1997).

In the case at bar, Officer Donigan testified that the appellant stated that he grabbed the purse while the co-defendant did the shooting. Officer Donigan also testified that the appellant stated he received $350 as his cut. Dr. Steve Asemota testified that Mr. Cantrell sustained life-threatening injuries as a result of the shooting. Mrs. Cantrell testified that as she was coming out of the store one man pushed her to the ground while the other one fired off a couple of shots. She also testified that after the two men ran off, one returned for her purse. Based on the testimony presented at trial there was substantial evidence to support the appellant's aggravated robbery conviction. The testimony also establishes sufficient evidence to support an aggravated assault conviction. The appellant's custodial statement supports a finding that there was purposeful action. Officer Donigan testified that the appellant stated they wore ski masks and his co-defendant had a .22 rifle. The firing of the shots manifests an extreme indifference to the value of human life. Dr. Asemota's testimony that Mr. Cantrell's injuries were life-threatening establishes that there was a danger of death or serious physical injury. Therefore there was no error. Motion to Transfer to Juvenile Court

The court denied the appellant's motion to transfer to juvenile court. An appeal from an order granting or denying a transfer to juvenile court must be raised in an interlocutory appeal. See Hamilton v. State, 320 Ark. 346, 350, 896 S.W.2d 877, 879 (1995). An appealafter a judgment of conviction is untimely. See id., 896 S.W.2d at 879.

Unresolved Objection

The next adverse ruling came during the testimony of Officer Donigan. Officer Donigan testified that on April 16, 1999, he interviewed Eli Hudson, Jr. and that Hudson changed his statement as to what happened while taking a polygraph test. Appellant objected arguing that it is was unclear who changed his mind, the polygraph or Hudson. The trial court asked Officer Donigan to see if he could "clear that up." The burden of obtaining a ruling is on the movant, and any objections and questions left unresolved are waived and may not be raised on appeal. See Casteel v. State Farm Mut. Auto. Ins. Co., 66 Ark. App. 220, 223, 989 S.W.2d 547, 549 (1999). Because the appellant failed to obtain a ruling this issue was not preserved. Admissibility of Evidence

The next adverse ruling also occurred during the testimony of Officer Donigan. Officer Donigan testified that the appellant's name came up during Eli Hudson's polygraph. The State asked Officer Donigan if he had taken the statement of Bridget Sennis. The appellant objected arguing there were two statements and the question did not identify which one the officer was referring to. The trial court overruled the objection. The trial court has discretion in determining the admissibility of evidence. See Dye v. State, 70 Ark. App. 329, 335, 17 S.W.3d 505, 510 (2000). The appellate court will only reverse if the trial court abused its discretion. See id. In the present case, after the court overruled the appellant's objection Officer Donigan went on to clarify which statement he was referring to. Becausethe appellant received the answer he was seeking despite his objection being overruled there was no prejudice to the appellant. Hearsay Objection

The next adverse ruling occurred during the testimony of Eli Hudson, Jr. On cross-examination the appellant asked Hudson if he "knew the appellant went to the North Little Rock Police Department to turn himself in and if they had a warrant for him." The State objected on the grounds that the answer would be hearsay. Before the trial court could sustain the objection, Hudson stated "I do not know that." The trial court asked the jury to disregard Hudson's answer.

Rulings on evidentiary matters regarding the admissibility of evidence are left to the discretion of the trial court and will not be reversed absent abuse of discretion. See Guydon v. State, 344 Ark. 251, 255, 39 S.W.3d 767, 770 (2001). On appeal, the trial court's ruling on a hearsay question will only be reversed if the appellant demonstrates an abuse of discretion. See Sera v. State, 341 Ark. 415, 435, 17 S.W.3d 61, 73-74 (2000). Here the trial court did not abuse its discretion because Hudson indicated he did not know the answer to the question.

Jury Instructions

During the penalty phase, the trial court refused appellant's proffer of two alternate verdict forms three times. Alternate verdict form one recommended strict probation and alternate verdict form two recommended suspension of a portion of any sentence given. Appellant first proffered the alternative verdict forms with any sentence given for the chargeof aggravated robbery. The law provides that when a defendant is convicted of a Class Y felony the trial court cannot suspend any portion of the defendant's sentence or place the defendant on probation. See State v. Stephenson, 340 Ark. 229, 232, 9 S.W.3d 495, 496 (2000).

Appellant proffered the same two alternate verdict forms for the aggravated assault charge. The trial court declined because he would probably run the sentence for aggravated assault concurrently with aggravated robbery. The court in its discretion, may instruct the jury that counsel may argue as to alternative sentences for which the defendant may apply. See Dale v. State, 55 Ark. App. 184, 191, 935 S.W.2d 274, 277 (1996). The trial court also has discretion in determining whether to suspend a sentence or run a sentence concurrently. See Fisk v. State, 5 Ark. App. 5, 14, 631 S.W.2d 626, 631 (1982). On appeal the trial court will be reversed if there is an abuse of discretion. See Edwards v. Stills, 335 Ark. 470, 491, 984 S.W.2d 366, 377 (1998).

Appellant proffered the forms again with an instruction to the jury that in addition to the normal sentencing on normal verdict forms they were entitled to consider alternate-verdict form one and two. The court declined because aggravated robbery is not alternate verdict offense. The court declined the instruction on parole eligibility because appellant indicated he would ask for a waiver of the seventy-percent rule and the court had not decided how he was going to rule. We note that appellant's counsel failed to fully abstract this point in his brief, however it appears he addressed this point in his previous two arguments. We find no error.

Prosecutorial Misconduct During Closing Arguments

The next adverse ruling occurred during the State's rebuttal closing argument. During his closing argument the appellant made statements about kids not thinking of the consequences of their actions; about a seventeen year old being an idiot with a rifle; and about how the appellant was unaware that his accomplice had a gun. In the State's rebuttal closing argument, the State asked the following question, "So are we going to slap somebody on the hand when they murder somebody cause it's their first time?" The appellant objected on the grounds that this was outside the scope of his closing and that no one was killed. The trial court overruled the objection finding that the statement was in response to what the appellant had argued.

The trial court is given broad discretion in controlling counsel during closing argument. See Leaks v. State, 66 Ark. App. 254, 259, 990 S.W.2d 564, (1999). The trial court's decision will not be reversed absent an abuse of discretion. See id., 990 S.W.2d at 567. Moreover, during the trial, the trial court instructed the jury that opening statements, remarks during trial, and closing argument were not evidence, and that they are only to help with the understanding of the evidence. The trial court did not abuse its discretion in overruling the objection.

The record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to the appellant and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed

Hart and Vaught, JJ., agree.