Williams v. State
Annotate this Case
Houston WILLIAMS and Kathlene Williams v.
STATE of Arkansas
CA CR 94-894 ___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered July 3, 1996
1. Appeal & error -- review of directed-verdict motion. -- The
appellate court first addressed appellants' arguments
concerning their motion for directed verdict because they
involved a challenge to the sufficiency of the evidence.
2. Evidence -- test for determining sufficiency of. -- The test
for determining the sufficiency of the evidence is whether
there is substantial evidence to support the verdict;
substantial evidence is evidence that is forceful enough to
compel a conclusion one way or another without suspicion or
conjecture; in determining the sufficiency of the evidence,
the appellate court reviews the proof in the light most
favorable to the State, considering only the evidence that
tends to support the verdict.
3. Evidence -- substantial evidence presented at trial to support
jury's verdict -- trial court did not err in denying directed-
verdict motion. -- Viewing the proof in the light most
favorable to the State, the appellate court held that there
was substantial evidence presented at trial to support the
jury's verdict, which convicted appellants of conspiracy to
deliver methamphetamine; because the trial court ruled that
two witnesses were not accomplices as a matter of law, there
was no requirement of corroborating evidence to send the case
to the jury for deliberation; the trial court did not err in
denying appellants' motions for directed verdict.
4. Criminal law -- accomplices -- whether witness is accomplice
is mixed question of law and fact. -- The court should not
instruct the jury that a certain witness is an accomplice if
there is any dispute in the testimony upon that point; whether
a witness is an accomplice is ordinarily a mixed question of
law and fact to be submitted to the jury.
5. Criminal law -- accomplices -- drawing of inferences is for
trier of fact. -- If different inferences may reasonably be
drawn from the proof regarding complicity, the question of
accomplice status is one for the jury; the drawing of
inferences is for the trier of fact.
6. Criminal law -- accomplices -- trial court did not err in
submitting question of accomplice status to jury. -- Where
there was abundant evidence that two witnesses were involved
in criminal activities with appellants but no direct evidence
of their agreement in the charged conspiracy, and although the
jury could have readily inferred that the witnesses were
accomplices to the conspiracy, the appellate court could not
say that the trial court erred in submitting the question of
accomplice status to the jury.
7. Constitutional law -- double jeopardy -- appellants'
conviction on conspiracy charge did not violate principle of
double jeopardy. -- While in a sense both the offenses of
possession of methamphetamine with intent to deliver and
conspiracy to distribute methamphetamine may be based on the
same conduct, each requires proof of a fact not required by
the other; therefore the affirmative defense of Ark. Code Ann.
5-1-113 did not apply; nor does Ark. Code Ann. 5-1-110
prevent conviction for both offenses because the conspiracy
that was the subject of the conviction in the case at bar was
not only a conspiracy to commit the other offense of
possession with intent to deliver that was the subject of the
prior conviction; the conspiracy was also to engage in the
continuing sale and distribution of methamphetamine over the
course of more than a year; appellants' conviction on the
conspiracy charge did not violate the principle of double
jeopardy.
8. Motions -- severance -- motion to sever must be renewed at
close of all evidence. -- To preserve for appeal a trial
court's denial of a motion to sever, the defendant must, under
Ark. R. Crim. P. 22.1(b), renew the motion at the close of all
the evidence; general renewals of motions that do not make
clear to the court the grounds relied upon have been held
insufficient to preserve the issue for appeal.
9. Motions -- severance -- no abuse of trial court's discretion
in refusing to sever. -- The trial court has broad discretion
in determining whether to grant or deny a motion to sever;
while there may have been some disparity in the quantity and
quality of evidence presented against the two appellants,
there was evidence presented that went specifically to the
conduct of the wife as well as to that of her husband; the
appellate court, noting that the jury had been appropriately
instructed to consider the evidence for or against each of the
defendants separately and to render verdicts accordingly,
found no abuse of discretion in the trial court's refusal of
the motion to sever.
10. Trial -- mistrial -- extreme remedy. -- Mistrial is an extreme
remedy to which the court should resort only when there has
been an error so prejudicial that justice cannot be served by
continuing the trial.
11. Trial -- closing arguments -- leeway given counsel -- wide
discretion given trial court -- no abuse of discretion found.
-- Counsel are given leeway in closing argument to argue
plausible inferences that can be drawn from the testimony; the
trial court has a wide latitude of discretion in controlling
the arguments of counsel; while the prosecutor's comments to
which defense counsel objected were outside of the evidence,
the jury was instructed that closing arguments were not
evidence; the appellate court will not overturn a trial
court's ruling absent clear abuse and did not find such
manifest abuse of discretion in the present case.
12. Trial -- cross-examination -- appellant did not show prejudice
from trial court's curtailment of repetitive cross-
examination. -- Where defense counsel, in attempting to ask
more about the possible sentence a witness faced, made an
offer of proof indicating that the witness did not want to be
deprived of the opportunity to earn forty hours a week of
minimum wage, did not want his child to have to visit him in
prison, and did not want to be deprived of his freedom, the
appellate court agreed with the trial court that the substance
of the proffer was irrelevant, redundant, and repetitive; the
witness's motives for testifying favorably for the State were
clear, and appellant did not show how she was prejudiced by
the court's curtailment of her repetitive cross-examination.
13. Criminal law -- sentence enhancement -- no fundamental
unfairness in addressing habitual conduct through use of
enhancement. -- Where appellant argued that it was error for
the trial court to allow evidence of her previous conviction
for possession with intent to deliver for enhancement purposes
at sentencing because the two convictions arose from a single
act, the appellate court, noting that appellant had been
convicted of conspiracy to distribute methamphetamine as an
ongoing course of conduct with her prior conviction for
possession with intent to deliver representing a single
episode therein, perceived no fundamental unfairness in
addressing her habitual conduct through use of enhancement.
Appeal from Washington Circuit Court; William A. Storey,
Judge; affirmed.
Kent McLemore and Finch & Gartin, by: Jay T. Finch, for
appellant.
Winston Bryant, Att'y Gen., by: Clint Miller, Deputy Att'y
Gen. and Senior Appellate Advocate, for appellee.
John E. Jennings, Chief Judge. *ADVREP*CA2*
EN BANC
CACR 94-894
July 3, 1996
HOUSTON WILLIAMS
AND KATHLENE WILLIAMS APPEAL FROM WASHINGTON COUNTY
APPELLANTS CIRCUIT COURT
VS.
HONORABLE WILLIAM A. STOREY,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
John E. Jennings, Chief Judge.
Houston Williams and Kathlene Williams, husband and wife, were
each convicted of conspiracy to deliver methamphetamine. They each
appeal from their convictions. Houston Williams argues three
points on appeal: (1) that the trial court erred in failing to
grant his motion for directed verdict in that the evidence was
insufficient because Henry Glosemeyer and his wife Terry Glosemeyer
were accomplices and their testimony was uncorroborated; (2) that
the trial court erred in refusing to instruct the jury that Henry
and Terry Glosemeyer were accomplices as a matter of law whose
testimony must be corroborated; and (3) that the trial court erred
in failing to grant appellants' motions to dismiss for double
jeopardy. Kathlene Williams argues these same points, and also
that the trial court erred in refusing to sever her trial from that
of her husband; the court erred in refusing to grant a mistrial
after the prosecutor referred to facts outside of the record; the
court erred in preventing her cross-examination of Henry Glosemeye-
r; and the court erred in allowing evidence of her previous
conviction for enhancement purposes at sentencing. We affirm as to
both appellants on all issues.
SUFFICIENCY OF THE EVIDENCE
We first address appellants' arguments concerning their motion
for directed verdict, as they involve a challenge to the suffi-
ciency of the evidence. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994);
Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). The test
for determining the sufficiency of the evidence is whether there is
substantial evidence to support the verdict. Substantial evidence
is evidence forceful enough to compel a conclusion one way or
another without suspicion or conjecture. Owens v. State, 313 Ark.
520, 856 S.W.2d 288 (1993). In determining the sufficiency of the
evidence, we review the proof in the light most favorable to the
State, considering only that evidence which tends to support the
verdict. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993).
Viewed in the light most favorable to the State, the following
evidence was presented at trial. Henry Glosemeyer testified that
he and Terry Glosemeyer met Houston Williams and Kathlene Williams
around Thanksgiving of 1991 when they were all working for a
trucking company. Henry Glosemeyer was aware that the Williamses
were behind in their house payments. He had a Mac Ten .9mm semi-
automatic handgun that he wanted to get rid of, and he suggested
that Houston Williams take the weapon to California and either sell
it or trade it for drugs so that they could split the proceeds.
Glosemeyer testified that Williams took the weapon to California
and when he returned he gave Glosemeyer a quarter ounce of
methamphetamine in return. Just before Christmas of 1991, the
Williamses lost their job with the trucking company. Glosemeyer
testified that he and Terry continued to have contact with the
Williamses, living out of a bedroom and staying at their residence
just about every weekend when they came through. Glosemeyer
testified that the Williamses would make trips to California to
obtain drugs and were making their living collecting unemployment
and dealing drugs. He testified that he and Terry used drugs at
the Williams' residence. In April 1992, Henry and Terry Glosemeyer
quit their job with the trucking company and moved into the
Williams' residence full time, where they all did drugs regularly.
He testified that they had numerous conversations about buying,
selling, and using drugs. He testified that Houston Williams,
sometimes accompanied by his wife Kathlene, would make a trip to
California every four to six weeks to procure more drugs. On one
trip, the Williamses took Henry Glosemeyer's personal pickup truck
to California to procure drugs. Glosemeyer testified that Terry
moved out of the Williams' residence in either June or July, but he
continued to live there until September 1992. During the time he
was living with the Williamses he saw people come to the house to
talk to the Williamses about drugs. He testified that people came
to the house and they all did drugs and there was constant
conversation about selling drugs and that both Houston and Kathlene
were part of the conversations. Henry Glosemeyer testified that
even after he moved out of the Williams' house he continued to be
involved with drugs and with the Williamses. In November of that
year, Glosemeyer began to sell quantities of methamphetamine to
another truck driver he knew. He testified that he got the drugs
from Houston and gave the money to both Houston and Kathlene.
Glosemeyer continued to sell drugs that he got from Houston
Williams until February 22, 1993, when he was arrested leaving the
Williams' house with two ounces of methamphetamine in his truck.
After his arrest, Glosemeyer cooperated fully with the police and
told them about the Williamses and his own role in the drug trade.
He testified that before his arrest he had been waiting for
Williams to return from a trip to California that he had made in
Glosemeyer's truck, and that Williams had told Glosemeyer he was to
pick up four pounds of methamphetamine in California. Glosemeyer
testified that at this time "I was a major distributor for him."
Terry Glosemeyer testified about meeting the Williamses,
moving in with them, and their collective drug use. She testified
that they all used methamphetamine, but she never bought drugs from
Houston and Kathlene Williams. She testified that Henry did buy
drugs from the Williamses and that she had witnessed Houston and
Kathlene sell drugs to other people. Terry Glosemeyer testified
that on one occasion she and Kathlene took some methamphetamine,
mixed it with Inositol, and put it in bags. On another occasion,
she testified that she counted between eight and ten thousand
dollars in cash for Houston before a trip to California to buy
drugs. She testified that after her husband was arrested on
February 22, 1993, eight days later when he was out of jail they
went to the Williams' house. Terry testified that she slept on the
couch that night and when she woke in the morning, she heard
conversations in the house between Houston Williams, Richie
Dickson, and Ron Fox. They were discussing the location of
methamphetamine that they had hidden. She believed the drugs they
were talking about were the last shipment that Houston had brought
in.
Detective Allen McCarty testified that he had been involved in
an investigation of Houston and Kathlene Williams involving their
distribution of methamphetamine. He first received information
regarding Houston Williams in November 1992. He eventually
interviewed a confidential informant named Fred Colvin. Colvin
told him that a person living in West Fork named Houston Williams
was making approximately three trips a month to California, was
buying drugs, and bringing them back to northwest Arkansas for
distribution. In February 1993, after receiving information from
a detective with the Ninth Judicial Drug Task Force, McCarty and
members of the Fourth Judicial Drug Task Force set up surveillance
of the Williams' residence. They saw Henry Glosemeyer drive to the
Williams' residence, and then leave. A few hours later a red
pickup arrived at the residence driven by Glosemeyer. About 8:30
p.m., they observed the pickup leave the residence driven by
Glosemeyer. The truck was stopped and Glosemeyer consented to a
search, which produced two ounces of methamphetamine. After
Glosemeyer's arrest, he indicated that he had gotten the drugs from
Houston Williams.
We hold that there was substantial evidence presented at trial
to support the jury's verdict. Because the trial court ruled that
Henry and Terry Glosemeyer were not accomplices as a matter of law,
there was no requirement of corroborating evidence to send the case
to the jury for deliberation. See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). The trial court did not err in denying the
appellants' motions for directed verdict.
ACCOMPLICES AS A MATTER OF LAW
Both appellants contend that the trial court erred in not
holding that both Henry and Terry Glosemeyer were accomplices to
the conspiracy as a matter of law. We cannot agree. Arkansas Code
Annotated section 5-2-403 provides, in part:
A person is an accomplice of another
person in the commission of an offense if,
with the purpose of promoting or facilitating
the commission of an offense, he...aids,
agrees to aid, or attempts to aid the other
person in planning or committing it.
In the case at bar the trial court gave AMCI 2d 403, which
allowed the jury to determine whether the Glosemeyers were
accomplices to the conspiracy and therefore whether corroboration
was required. The "Note on Use" to AMCI 2d 403 states that the
instruction should be given when an alleged accomplice has
testified and the sufficiency of the corroborating evidence
presents an issue of fact for the jury. The court should not
instruct the jury that a certain witness is an accomplice if there
is any dispute in the testimony upon that point. Odom v. State,
259 Ark. 429, 533 S.W.2d 514 (1976). Whether a witness is an
accomplice is ordinarily a mixed question of law and fact, to be
submitted to the jury. Odom v. State, supra. The problem here
cannot be adequately understood without some discussion of the
nature of the crime of conspiracy. Professor Lafave states:
As courts have so often said, the agreement is
the "essence" or "gist" of the crime of con-
spiracy.
. . . .
Because most conspiracies are clandestine in
nature, the prosecution is seldom able to
present direct evidence of the agreement.
Courts have been sympathetic to this problem,
and it is thus well established that the
prosecution may "rely on inferences drawn from
the course of conduct of the alleged conspira-
tors." This notion has been traced to an oft-
quoted instruction in an 1837 English case,
where the judge told the jury: "If you find
that these two persons pursued by their acts
the same object, often by the same means, one
performing part of an act and the other
another part of the same act, so as to com-
plete it, with a view to the attainment of the
object which they were pursuing, you will be
at liberty to draw the conclusion that they
have been engaged in a conspiracy to effect
that object."
2 Wayne R. LaFave and Austin W. Scott Jr., Substantive Criminal Law
6.4 (1986).
In the case at bar, the Williamses were charged with conspir-
ing to deliver methamphetamine in northwest Arkansas. Although
there was considerable evidence of criminal activity on their part,
there was no direct evidence of the actual agreement between them.
The jury in the case at bar was permitted to draw such an infer-
ence. Likewise, there is abundant evidence that the Glosemeyers
were involved in all sorts of criminal activities with the
Williamses, but again there is no direct evidence of their
agreement in the charged conspiracy. If different inferences may
reasonably be drawn from the proof regarding complicity, the
question of accomplice status is one for the jury. See 75A Am.
Jur. 2d Trial 822 (1991). Our courts have repeatedly said that
the drawing of inferences is for the trier of fact. See Core v.
State, 265 Ark. 409, 578 S.W.2d 581 (1979); Crow v. State, 248 Ark.
1051, 455 S.W.2d 89 (1970); Lewis v. State, 7 Ark. App. 38, 644 S.W.2d 303 (1982).
While we agree that the jury could readily infer, in the case
at bar, that the Glosemeyers were accomplices to the conspiracy, we
cannot say the court erred in submitting the question to them.
DOUBLE JEOPARDY
Prior to this trial on charges of conspiracy to distribute
methamphetamine, both Houston and Kathlene Williams were convicted
in a separate trial of possession of methamphetamine with intent to
deliver. They argue that Ark. Code Ann. 5-1-113 provides them
with an affirmative defense to the second prosecution, and cite
Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988), in support.
They also argue that the doctrine of merger prohibits the second
prosecution, citing Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886).
Arkansas Code Annotated section 5-1-113 provides in pertinent
part:
A former prosecution is an affirmative
defense to a subsequent prosecution for a
different offense under the following circum-
stances:
(1) The former prosecution resulted in
...a conviction...and the subsequent prosecu-
tion is for:
. . . .
(B) An offense based on the same con-
duct, unless:
(i) The offense of which the defendant
was formerly convicted...and the offense for
which he is subsequently prosecuted each
requires proof of a fact not required by the
other and the law defining each of the
offenses is intended to prevent a substan-
tially different harm or evil; or
(ii) The second offense was not consum-
mated when the former trial began.
In Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988), the
defendant was convicted of manslaughter in the death of one victim
while a second victim of the same incident remained in a coma.
After the second victim died, defendant's subsequent prosecution
for her death was held not to be barred because the second offense
was not consummated when the former trial began. In the case at
bar, appellants argue that the charges in the first trial and the
charges of conspiracy in the subsequent trial arose out of the same
conduct, and the "not yet consummated" exception does not apply
because all of the activities constituting the elements of the
conspiracy charges had been consummated before the first trial
began.
While accurate as far as it goes, appellants' argument
overlooks the other exception, contained in subsection (1)(B)(i).
The offense of possession with intent to deliver and the offense of
conspiracy to distribute "each requires proof of a fact not
required by the other and the law defining each of the offenses is
intended to prevent a substantially different harm or evil."
Arkansas Code Annotated section 5-1-110(a)(2) provides that when
the same conduct of a defendant may establish more than one
offense, the defendant may be prosecuted for each such offense but
may not be convicted of more than one offense if one offense
consists only of a conspiracy to commit the other. By allowing
prosecution for both conspiracy and the underlying offense, this
section does not merge the inchoate offense into the ultimate
offense as was the law in Elsey v. State. However, as the Original
Commentary to this section of the Code illustrates, the use of the
word "only" is significant. As the Commentary points out:
[I]t restrict[s] application of the subsection
in the conspiracy context to the situation
where the consummated offense was the sole
object of the conspiracy. If the defendant
conspired to commit a continuing series of
offenses, he may be convicted of both the
conspiracy and a completed offense committed
pursuant to the conspiracy. For example, the
person who agrees with others to engage in the
continuing sale and distribution of drugs may
be convicted of both conspiracy and a complet-
ed drug sale.
We found this reasoning persuasive in Lee v. State, 27 Ark. App.
198, 770 S.W.2d 148 (1989), where we held that 5-1-110 did not
prohibit convictions for both delivery of a controlled substance
and conspiracy to deliver. The same reasoning is applicable to the
case before us. While in a sense both the offenses of possession
of methamphetamine with intent to deliver and conspiracy to
distribute methamphetamine may be based on the same conduct, each
requires proof of a fact not required by the other; therefore the
affirmative defense of 5-1-113 does not apply. Nor does 5-1-
110 prevent conviction for both offenses, as the conspiracy that
was the subject of the conviction in the case at bar was not only
a conspiracy to commit the other offense of possession with intent
to deliver on February 23, 1993, that was the subject of the prior
conviction. The conspiracy was to engage in the continuing sale
and distribution of methamphetamine over the course of more than a
year. The appellants' conviction on the conspiracy charge did not
violate the principle of double jeopardy.
SEVERANCE
The remaining arguments are made solely by appellant Kathlene
Williams. She argues that the trial court erred when it refused to
sever her case from that of her husband, as the evidence against
him was so much stronger than that against her.
In order to preserve for appeal a trial court's denial of a
motion to sever, the defendant must renew the motion at the close
of all the evidence. Ark. R. Crim. P. 22.1(b). General renewals
of motions, that do not make clear to the court the grounds relied
upon, have been held insufficient to preserve the issue for appeal.
See Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Jacobs v.
State, 317 Ark. 454, 878 S.W.2d 734 (1994); Wynn v. State, 316 Ark.
414, 871 S.W.2d 593 (1994). In the case at bar, appellant's
counsel stated to the court, "[I]n order to preserve my motion for
severance I have to reurge it." Even if this is considered
sufficient to preserve the issue, we recognize that the trial court
has broad discretion in determining whether to grant or deny a
motion to sever. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366
(1995). While there may have been some disparity in the quantity
and quality of evidence presented against the two appellants, there
was evidence presented that went specifically to the conduct of
Kathlene as well as to that of Houston. We note that the jury was
appropriately instructed to consider the evidence for or against
each of them separately, and to render verdicts accordingly. We
find no abuse of discretion in refusal of the motion to sever.
MOTION FOR MISTRIAL --
PROSECUTOR'S CLOSING ARGUMENT
Appellant Kathlene Williams argues that the trial court erred
in failing to grant a mistrial for some of the prosecutor's remarks
made during closing argument. In referring to defense counsels'
questioning of Henry Glosemeyer about his incentive to testify
because of the charges pending against him, the prosecutor stated
"you're looking at the person who makes that decision, and he
doesn't know what's going to happen." Appellant's counsel objected
to the prosecutor's referring to information not in evidence, and
was overruled. Again, the prosecutor stated that Glosemeyer never
testified what "deal" he had with the prosecutor, "because there
ain't none." Again, the same objection was overruled. The
prosecutor then referred to statements made by Fred Colvin, another
defendant, implying that they may possibly have been induced to
avoid the appellants "messing with his friends or messing with
him." Appellant's counsel objected again on grounds that the
prosecutor had argued facts not in evidence and asked that the jury
be admonished not to consider the statements. The trial court
responded that the jury had been instructed that arguments are not
evidence. Counsel then asked for mistrial, which was denied.
Mistrial is an extreme remedy to which the court should resort
only when there has been an error so prejudicial that justice
cannot be served by continuing the trial. King v. State, 317 Ark.
293, 877 S.W.2d 583 (1994). Counsel are given leeway in closing
argument to argue plausible inferences that can be drawn from the
testimony, and the trial court has a wide latitude of discretion in
controlling the arguments of counsel. Littlepage v. State, 314
Ark. 361, 863 S.W.2d 276 (1993). While the prosecutor's comments
were outside of the evidence, the jury was instructed that closing
arguments were not evidence. We will not overturn the trial
court's ruling absent clear abuse, and we do not find such manifest
abuse of discretion here.
LIMITATION OF CROSS-EXAMINATION
Appellant Kathlene Williams argues that the trial court erred
in disallowing her cross-examination of Henry Glosemeyer regarding
"the extent to which his deal to testify favorably for the State
might be motivated by what he faced if convicted." She argues that
her cross-examination was attempting to show that he had ample
motive to testify favorably for the State.
Glosemeyer testified that he had been in trouble for metham-
phetamine twice before, had been to prison, and did not want to go
back. He indicated that in a prior case he had testified for the
prosecution and had gotten probation. He testified that he was
being prosecuted for possession with intent to deliver and faced
the possibility of a life sentence. He acknowledged that his case
had been continued a number of times for the purpose of seeing the
outcome of appellants' trial. He admitted that he was "testifying
in order to do as much as I can to help myself"; that there was "no
doubt about the fact that I am seeking favorable consideration for
my testimony[;] I want leniency"; and that "I will come in and say
anything to prevent myself from sitting in that defense chair as
long as its the truth."
When the prosecutor objected to appellant's counsel's attempt
on cross-examination to ask more about the possible sentence
Glosemeyer faced, counsel made an offer of proof in which he had
Glosemeyer admit that thirty years in prison would deprive him of
the opportunity to earn forty hours a week of minimum wage; that
Glosemeyer did not want his child to have to visit him in prison;
and that he did not want to be deprived of his freedom. The court
indicated to counsel that the substance of the proffer was irrele-
vant, redundant, and repetitive. We agree. Glosemeyer's motives
for testifying favorably for the State were clear, and appellant
has not shown how she was prejudiced by the court's curtailment of
her repetitive cross-examination.
ENCHANCEMENT
Appellant's final argument is that it was error for the court
to allow evidence of her previous conviction for possession with
intent to deliver for enhancement purposes at sentencing. She
argues that as the two convictions arose from a single act it was
fundamentally unfair to use one to enhance punishment for the
other, citing Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989).
In that case the supreme court held that enhancement of punishment
was directed towards habitual offenders, and because Tackett was
convicted on two manslaughter charges arising out of a single
criminal act, there was nothing habitual about his conduct and it
would contravene fundamental fairness to treat him as an habitual
offender. In contrast, appellant was convicted of conspiracy to
distribute methamphetamine as an ongoing course of conduct, with
her prior conviction for possession with intent to deliver
representing a single episode therein. We do not perceive the same
fundamental unfairness in addressing her habitual conduct through
use of enhancement.
Affirmed.
COOPER and MAYFIELD, JJ., agree.
PITTMAN, STROUD, and GRIFFEN, JJ., dissent. EN BANC
CACR 94-894
July 3, 1996
HOUSTON LEON WILLIAMS AND AN APPEAL FROM WASHINGTON
KATHLENE WILLIAMS COUNTY CIRCUIT
APPELLANTS
V. HON. WILLIAM A. STOREY, JUDGE
STATE OF ARKANSAS
APPELLEE DISSENTING OPINION
Wendell L. Griffen, Judge.
I dissent from the result announced in the prevailing opinion
and its underlying reasoning. It is statutory law that a felony
conviction cannot rest on the uncorroborated testimony of an
accomplice. Ark. Code Ann. 16-89-111(e)(1)(1987). Arkansas law
also holds that a person is an accomplice of another person in the
commission of an offense if, with the purpose of promoting or
facilitating the commission of an offense, he aids, agrees to aid,
or attempts to aid the other person. Ark. Code Ann. 5-2-
403(a)(2)(Repl. 1993). The Arkansas Model Jury Instructions
provide for accomplice status to be determined either as a matter
of law (AMCI 402), or by the jury as a matter of fact (AMCI 403).
Futhermore, the law is clear that accomplice liability as a matter
of law can exist in cases involving criminal conspiracy. Stric-
kland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1985); Shrader
v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984); Cate v. State,
270 Ark. 972, 606 S.W.2d 764 (1980). In this case, both instruc-
tions were submitted by the parties, and the trial judge issued
AMCI 403, thereby allowing the jury to determine the status of
Henry and Terri Glosemeyer as accomplices to the conspiracy to
distribute methamphetamine with Houston and Kathlene Williams.
Appellants argue that both Henry and Terri Glosemeyer should
have been declared accomplices as a matter of law because they
aided the appellants in their drug distributing enterprise, and if
that argument is valid, then the testimony from both Henry and
Terri Glosemeyer should have been corroborated by non-accomplice
sources. Appellants are correct. Where the facts concerning oneþs
status as an accomplice are in dispute, whether one is an accom-
plice is a jury question that plainly warrants giving AMCI 403.
Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984). In
order for one to be determined an accomplice as a matter of law,
the evidence supporting that finding must be conclusive or
indisputable. Clements v. State, 303 Ark. 319, 796 S.W.2d 839
(1990).
The proof concerning conduct by Henry Glosemeyer aiding the
conspiracy to distribute methamphetamine is clear and undisputed.
He provided a gun to Houston Williams so that it could be traded
for drugs. He acted as a distributor of methamphetamine for
Houston Williams for a period of time. Henry Glosemeyer also
knowingly and willfully provided his truck so that Houston Williams
could haul methamphetamine from California to Arkansas for
distribution. These facts are conclusive proof that Henry
Glosemeyer aided, agreed to aid, and attempted to aid a conspiracy
to distribute methamphetamine.
Likewise, the evidence shows that Terri Glosemeyer knowingly
financed her husbandþs involvement in the methamphetamine distribu-
tion enterprise with Houston Williams by giving her pay check to
Henry Glosemeyer so that he could use the proceeds from it to
purchase methamphetamine from Houston Williams for distribution.
The undisputed proof is that Terri Glosemeyer did this over a
period of several weeks. There was also undisputed proof that she
willingly assisted in bagging methamphetamine for distribution with
Kathlene Williams, and that she helped Houston Williams count money
to be used for purchasing methamphetamine.
Thus, the proof that Henry and Terri Glosemeyer aided, agreed
to aid, or attempted to aid Houston and Kathlene Williams in a
conspiracy to distribute methamphetamine was both plain and
uncontroverted so as to be conclusive, thereby justifying the jury
instruction that they were accomplices as a matter of law (AMCI
402). There is no proof otherwise that would have justified
submitting the question of their accomplice status to the jury as
an issue of fact.
In Strickland v. State, supra, we held that it was error for
a trial court to fail to instruct on accomplice liability as a
matter of law in a criminal conspiracy where the alleged accomplice
invested money in a drug manufacturing scheme, but later took his
money back. We decided that the þovert actþ of paying the money
was already complete so as to seal the fate of the alleged
accomplice. Applying the clear holding of Strickland to the facts
before us, it is obvious that any of the acts by either Henry or
Terri Glosemeyer was sufficient to establish accomplice liability
in the conspiracy based on the notion that the acts were aiding the
conspiracy to distribute methamphetamine. Certainly the combined
actions demonstrate an unmistakable pattern of complicity to the
conspiracy.
It follows, therefore, that the conspiracy case against
appellants cannot stand. Because both Glosemeyers should have been
declared accomplices to the conspiracy as a matter of law, neither
of them could provide the requisite corroborating testimony for the
other in order to establish the felony charge of conspiracy to
distribute methamphetamine. Ark. Code Ann. 16-89-111(e)(1). The
only other proof against appellants on the conspiracy charge came
from police officers who obtained their information directly from
the Glosemeyers or from Fred Colvin. Colvin was a co-conspirator
who ironically was determined an accomplice as a matter of law by
the trial court based solely on his affidavit at a suppression
hearing that he had participated in the methamphetamine distribu-
tion enterprise with Houston Williams. Counsel for the State
candidly admitted at oral argument that he was unable to explain
why Terri Glosemeyer should not have been deemed an accomplice as
a matter of law given that Colvin was declared to be one, and that
there was no factual basis in the record for distinguishing their
status. At any rate, it is clear that there is no corroborating
testimony supporting the conspiracy charge in this record when one
excludes the testimony from the Glosemeyers, Colvin, and the police
officers whose only knowledge of the conspiracy consists of
information received from the accomplices. Therefore, the
convictions should be reversed, and the case dismissed.
Although the prevailing opinion reasons that the trial court
properly submitted the accomplice liability issue to the jury,
neither that opinion nor the State has advanced a plausible
explanation why we have a model jury instruction providing for
declaration of accomplice liability as a matter of law (AMCI 402)
if we are never to apply it to cases where proof of the conduct
showing complicity in a conspiracy is conclusive. Conspiracy cases
are not exempt from the requirement that testimony from an
accomplice be corroborated by a non-accomplice, nor are they exempt
from accomplice status being declared as a matter of law where
proof of complicity is conclusive. I would, therefore, follow our
clear holding in Strickland, supra, and reverse and dismiss this
case.
I am authorized to state that Pittman and Stroud, JJ., join in
this opinion.
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