Webb v. State

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Michael Ryan WEBB v. STATE of Arkansas

CR 96-941                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Criminal procedure -- motion for directed verdict -- when
     timely raised. -- A motion for directed verdict must be
     renewed at the end of the close of the case, and an attempt to
     renew such motion after the jury has been charged is not
     timely.

2.   Jury -- instructions -- no error in refusing to give
     instruction not warranted by evidence. -- There is no error in
     the refusal to give an instruction where there is no evidence
     to support the giving of that instruction. 

3.   Jury -- instructions -- model criminal instructions to be used
     so long as they accurately state law. -- When a trial court
     determines that the jury be instructed on an issue, the model
     criminal instructions shall be used unless the trial court
     concludes they do not accurately state the law.

4.   Jury -- appellant not entitled to mere presence instruction --
     accomplice liability clearly applicable. -- Where appellant
     failed to point to any evidence that showed he was merely
     present at the crime scene when two boys were shot, and the
     evidence presented showed that appellant had been present at
     the time of the shootings, but in being present, he shot
     someone and afterwards was overheard talking about it,
     appellant would not have been entitled to a "mere presence"
     instruction even if it had been in AMCI2d; AMCI2d 401 on
     accomplice liability was clearly applicable to the facts and
     required no further explanation of the law.


     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
affirmed.
     Dover & Dixon, by:  James R. Rhodes, III, and Jack T.
Lassiter, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     Appellant Michael Webb brings this appeal from his convictions
for the first-degree murder of Jason Hatcher and first-degree
battery of Timothy McGarity, and his respective sentences for each
crime of forty and six years' imprisonment.  This is the third
appeal this court has had involving Hatcher's death and McGarity's
battery.  See Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996);
Jones v. State, 321 Ark. 649, 907 S.W.2d 672 (1995).  Webb's points
for reversal are that the trial court erred in denying his
directed-verdict motions and in refusing his proffered "mere
presence" instruction. 
     We first dispose of Webb's directed verdict motion issue
because it was not properly preserved below.  At the close of the
State's case, Webb moved for a directed verdict based on
insufficiency of the evidence, which the trial court denied.  After
the jury was instructed but before it began deliberations, Webb
renewed his motion for directed verdict, stating the evidence was
insufficient to prove the State's charges and failed to show he was
an accomplice.  As we held in Claiborne v. State, 319 Ark. 602, 892 S.W.2d 511 (1995), a motion for directed verdict must be renewed at
the end of the "close of the case," Ark. R. Crim. P. 33.1, and an
attempt to renew such motion after the jury has been charged is not
timely.
     We now turn to Webb's second point which undoubtedly is the
main argument on appeal.  He argues that, at the beginning of the
trial court's consideration of the instructions submitted by the
parties, he proffered the following "mere presence" instruction:  
             DEFENDANT'S REQUESTED INSTRUCTION NO. 2
          Mere presence, acquiescence, silence, or knowledge
     that a crime is being committed, in the absence of a
     legal duty to act, is not sufficient to make one an
     accomplice.  Therefore, if you find that Ryan Webb was
     only present while a crime was being committed and did
     not have a legal duty to act, then he is not an
     accomplice.  Ford v. State, 296 Ark. 8, 753 S.W.2d 258
     (1988).
The State objected to Webb's foregoing instruction, urging it was
not an AMCI2d instruction.  The State further contended that AMCI2d
401 on accomplice liability was a correct statement of the law, and
Webb's "mere presence" instruction simply was unnecessary.  The
trial court agreed with the State, and denied Webb's proffer.
     On appeal, Webb argues that, although AMCI2d does not contain
a "mere presence" instruction, the rule of law contained in his
proposed instruction is recognized in the comment to AMCI2d 401,
the accomplice instruction.  Citing other jurisdictions, Webb
asserts the "mere presence" instruction is commonly given in
criminal cases when warranted.  See Devitt & Blackmar,  16.09;
United States v. Avecedo, 842 F.2d 502 (1st Cir. 1988); United
States v. Love, 767 F.2d 1052 (4th Cir. 1985); United States v.
Keefer, 799 F.2d 1115 (6th Cir. 1986).  Webb argues the record
warranted the trial court's giving a "mere presence" instruction
and its failure constituted a due process violation.  We cannot
agree.  
     First, we disagree with Webb's assertion that a "mere
presence" instruction would have been warranted even if it was
included in AMCI2d.  Our law is well settled that there is no error
in the refusal to give an instruction where there is no evidence to
support the giving of that instruction.  While we need not discuss
all the evidence at Webb's trial, we do relate that relevant proof
necessary to decide the issue.  Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Couch v. State, 274 Ark. 29, 621 S.W.2d 694
(1981).
     Timothy McGarity and Clay Cochran departed McGarity's vehicle
on the Harvest Foods' parking lot in Sherwood, and started a fight
with James Gross and Stan Messer.  Other vehicles, containing
friends of McGarity and Cochran, had followed McGarity's car onto
the lot and those friends congregated around the fight.  A blue
Honda Accord carrying friends of Gross and Messer came on the lot
and stopped in the vicinity of the fight.  Gunshots were fired and
Jason Hatcher, who had been in a vehicle following McGarity's
vehicle, was fatally wounded.  McGarity was also shot and wounded
in the leg.  Witnesses identified Chad Jones, an occupant of the
Honda as having a handgun.  Another witness saw Gross shooting a
gun.  No one identified Webb as being present on the parking lot.
     The State's evidence connecting Webb to the shooting centered
on the testimony of Monica Parker and Jessica Fleming, who
testified that they were visiting at a friend's apartment on the
night Hatcher had been shot.  Webb, Jones, Jason Carter, and James
Gross entered the apartment and were talking about a fight they
just had.  They said Webb was carrying a long-barreled gun and when
he sat down in a recliner he laid the gun down beside him.  Parker
and Fleming stated Webb said something to the effect that "I shot
someone" or "I think I got one."  When Webb left with his friends,
Parker and Fleming said he took the gun with him.  Webb's apartment
was searched the next day by officers, who found a .30 caliber
carbine.  Webb concedes that expert testimony linked the .30
caliber casings found at the crime scene to Webb's carbine.
     In sum, Webb fails to point to any evidence that showed he was
merely present at the crime scene when Hatcher and McGarity were
shot.  Instead, the only evidence presented showed he, indeed, had
been present at Harvest Foods' parking lot at the time of the
shootings, but in being present, he shot someone and afterwards was
overheard talking about it.
     In these circumstances, we conclude Webb would not have been
entitled to a "mere presence" instruction even if it had been in
AMCI2d.  In addition, we emphasize, too, that our law is well
settled that, when a trial court determines that the jury be
instructed on an issue, the model criminal instructions shall be
used unless the trial court concludes it does not accurately state
the law.  Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). 
Here, AMCI2d 401 on accomplice liability was clearly applicable to
the facts of this case, and required no further explanation of the
law.

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