Pickett v. State

Eddie PICKETT v. STATE of Arkansas

CA CR 96-45                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
               Opinion delivered December 18, 1996


1.   Evidence -- accomplices -- corroborating evidence must to
     substantial degree connect defendant to commission of crime. -
     - The corroborating evidence needed to convict on accomplice
     testimony need not be sufficient standing alone to sustain the
     conviction, but it must, independent from that of the
     accomplice, tend to a substantial degree to connect the
     defendant with the commission of the crime; the test is
     whether, if the testimony of the accomplice were completely
     eliminated from the case, the other evidence independently
     establishes the crime and tends to connect the accused with
     its commission; the corroborating evidence may be
     circumstantial so long as it is substantial; evidence that
     merely raises a suspicion of guilt is insufficient to
     corroborate an accomplice's testimony.  

2.   Evidence -- presence of accused in close proximity to crime
     relevant for determining accomplice connection -- such proof
     alone insufficient corroboration of defendant's connection to
     it. -- The presence of an accused in the proximity of a crime,
     opportunity, and association with a person involved in the
     crime are relevant facts in determining the connection of an
     accomplice with the crime; however, proof that merely places
     the defendant near the scene of a crime is not sufficient
     corroborative evidence of the defendant's connection to it.

3.   Evidence -- independent evidence established commission of
     crimes -- independent evidence laking to show appellant's
     connection to crime. -- Although the evidence independent of
     the purported accomplice's testimony was sufficient to
     establish that a burglary and theft were committed, the only
     evidence produced by the State to connect appellant with the
     commission of these offenses, other than testimony of the
     purported accomplice, was that he was present on the victim's
     next-door neighbor's property some sixty to ninety minutes
     before the crimes were discovered; that was not sufficient to
     satisfy the requirement of Ark. Code Ann.  16-89-111(e)(1); 
     the case was reversed and dismissed.
     
     Appeal from Union Circuit Court; John M. Graves, Judge;
reversed and dismissed.
     Katherine S. Street, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     John Mauzy Pittman, Judge.
     Eddie Pickett appeals from his conviction at a jury trial of
residential burglary and theft of property, for which he was
sentenced to concurrent terms of thirty and ten years in the
Arkansas Department of Correction.  On appeal, he contends that the
trial court erred in denying his motions for directed verdicts of
acquittal on grounds that insufficient evidence was presented to
corroborate the testimony of an admitted accomplice.  We agree, and
we reverse and dismiss.
     Appellant and Anthony Bluford were charged with the felonies
of residential burglary and theft of property in connection with
crimes committed against Ms. Jeannie Barnett and her family. 
Bluford entered negotiated guilty pleas and was placed on
probation.  At appellant's trial, the State presented evidence
establishing that Ms. Barnett's home was burglarized on August 24,
1994, and that several items of personal property were stolen,
including a cordless telephone that had been broken and taped back
together, a watch, four Nintendo game cartridges, and a T-shirt. 
Bluford testified that he and appellant broke into the Barnett home
together.  Bluford testified that he took some game cartridges and
a watch, and that appellant picked up a cordless telephone and some
shirts.  Bluford testified that he then left appellant inside the
house and went alone to a pawn shop to sell what he had taken.
     Mr. Jerry Burson, an employee of El Dorado Pawn, testified
that he was working on August 24, 1994.  He testified that two men
came in on that date and sold four Nintendo cartridges.  Mr. Burson
did not recognize and could not identify the two men, but one of
them presented Anthony Bluford's driver's license as
identification.
     Ms. Barnett testified that she left her house between 12:30
and 1:00 p.m. on the day of the crimes.  She testified that, when
she left, appellant was standing by himself in the carport of her
next-door neighbor's home and spoke to her.  She testified that she
was gone from an hour to an hour and a half, and returned between
1:30 and 2:00 p.m. to discover the burglary and theft.  She further
testified that the game cartridges retrieved from the pawn shop
were the ones stolen from her home and were the only items ever
recovered.  
     Ms. Barnett testified that she first saw appellant on the
evening before the burglary.  He had come to her door with some
younger neighbors and asked her son for a cigarette.
     Officer Jamie Morrow of the El Dorado Police Department
testified that he interviewed appellant in connection with the
burglary.  The officer testified that appellant denied any
knowledge of the burglary and offered an alibi.  According to the
officer, appellant stated that he owned a white cordless telephone
with a piece of tape on the back.  No such telephone was found in
a subsequent search of appellant's home.
     Appellant argues that the evidence was insufficient to
corroborate the testimony of Bluford, an admitted accomplice, and
that his convictions must therefore be reversed and dismissed.  We
agree.
     Arkansas Code Annotated  16-89-111(e)(1) (1987) provides:
          A conviction cannot be had in any case of felony
     upon the testimony of an accomplice unless corroborated
     by other evidence tending to connect the defendant with
     the commission of the offense.  The corroboration is not
     sufficient if it merely shows that the offense was
     committed and the circumstances thereof.

The corroborating evidence need not be sufficient standing alone to
sustain the conviction, but it must, independent from that of the
accomplice, tend to a substantial degree to connect the defendant
with the commission of the crime.  Rhodes v. State, 276 Ark. 203,
634 S.W.2d 107 (1982); Gibson v. State, 41 Ark. App. 154, 852 S.W.2d 326 (1993).  The test is whether, if the testimony of the
accomplice were completely eliminated from the case, the other
evidence independently establishes the crime and tends to connect
the accused with its commission.  Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996); Gibson v. State, supra.  The corroborating
evidence may be circumstantial so long as it is substantial;
evidence that merely raises a suspicion of guilt is insufficient to
corroborate an accomplice's testimony.  Gordon v. State, supra;
Gibson v. State, supra.
     Here, we agree with the State that the evidence independent of
Bluford's testimony was sufficient to establish that the crimes
were committed.  We further agree that the presence of an accused
in the proximity of a crime, opportunity, and association with a
person involved in the crime are relevant facts in determining the
connection of an accomplice with the crime.  See Passley v. State,
323 Ark. 301, 915 S.W.2d 248 (1996).  However, proof that merely
places the defendant near the scene of a crime is not sufficient
corroborative evidence of the defendant's connection to it.  Farrar
v. State, 241 Ark. 259, 407 S.W.2d 112 (1966).  Here, aside from
Bluford's testimony, the only evidence produced by the State to
connect appellant with the commission of these offenses is that he
was present on the victim's next-door neighbor's property some
sixty to ninety minutes before the crimes were discovered.  That is
not sufficient to satisfy the requirement of  16-89-111(e)(1). 
See id.
     Reversed and dismissed.
     Jennings, C.J., and Robbins, Rogers, and Stroud, JJ., agree.
     Mayfield, J., dissents.

=================================================================
                Melvin Mayfield, Judge, dissents.
     The majority opinion correctly points out that the issue here
is whether there is sufficient evidence to corroborate the
testimony of Bluford, an admitted accomplice.  However, the
majority opinion concludes that "aside from Bluford's testimony,
the only evidence produced by the State to connect appellant with
the commission of these offenses is that he was present on the
victim's next-door neighbor's property some sixty to ninety minutes
before the crimes were discovered."  I do not agree with that
conclusion.    
     The burglary occurred on August 24, 1994.  Mrs. Jeanne Barnett
testified that the evening before the burglary the appellant came
to her door and asked her son for a cigarette.  She identified the
appellant in the courtroom as the young man who came to her door,
and she testified that he came into the living room where the Super
Nintendo video game was set up.  She said four Super Nintendo
cartridges were taken in the burglary, as were some other things. 
She got the Nintendo cartridges back from a pawn shop managed by
Mr. Burson. 
     A cordless telephone was one of the other things taken in the
burglary.  Mrs. Barnett said it had been broken and she had taped
it together. Officer Jamie Morrow testified that when he
interviewed appellant, appellant denied having any knowledge of the
burglary, but he admitted to Officer Morrow that he had a white
portable telephone with a piece of tape on it. 
     In addition, Mrs. Barnett testified that when she left her
house the day of the burglary, the appellant was standing on her
next-door neighbor's carport.  He spoke to her and said he was her
new neighbor.  Moreover, Jerry Burson, who operated a pawn shop,
testified that on August 24, 1994, two men came to his shop and
sold him four Nintendo cartridges.  He could not identify the men,
but one had a driver's license issued to Anthony Bluford.         
     Corroboration of an accomplice's testimony need not be
sufficient, in and of itself, to sustain a conviction.  It may be
slight and not altogether satisfactory and convincing, if
substantial.  Olles & Anderson v. State, 260 Ark. 571, 573, 542 S.W.2d 755 (1976); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202. 
The acts, conduct, and declarations of the accused before or after
the crime, including his testimony at the trial, may furnish the
necessary corroboration.  Olles & Anderson, supra; Ford v. State,
205 Ark. 706, 170 S.W.2d 671 (1943); Dickson v. State, 197 Ark.
1161, 127 S.W.2d 126 (1939); Long v. State, 192 Ark. 1089, 97 S.W.2d 67 (1936); Stroud v. State, 167 Ark. 502, 268 S.W. 850
(1925); Russell v. State, 97 Ark. 92, 133 S.W. 188 (1910).       
     The presence of an accused in the proximity of a crime,
opportunity, and association with a person involved in a crime in
a manner suggestive of joint participation, are each relevant
factors in determining the connection of an accomplice with the
crime.  Ashley v. State, 22 Ark. App. 73, 78, 732 S.W.2d 872, 874
(1987).  It is unnecessary that the evidence be sufficient to
sustain the conviction, but the evidence must, independent from
that of the accomplice, tend to a substantial degree to connect the
defendant with the commission of the crime.  Rhodes v. State, 276
Ark. 203, 210, 634 S.W.2d 107, 111-12 (1982).  This court reviews
the sufficiency of the evidence by the test of whether the verdict
of guilt is supported by substantial evidence, which means whether
the jury could have reached its verdict without resort to
speculation and conjecture.  Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).  Where circumstantial evidence is used to
support accomplice testimony, all facts in evidence can be
considered to constitute a chain sufficient to present a question
for resolution by the jury as to the adequacy of the corroboration,
and the appellate court will not look to see whether every other
reasonable hypothesis but that of guilt has been excluded.  Johnson
v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); Rhodes,
supra; McDonald v. State, 37 Ark. App. 61, 63, 924 S.W.2d 396, 398
(1992).
     While I agree that the evidence corroborating the testimony of
the accomplice was slight, still the corroboration was sufficient
to justify the court in submitting the question to the jury.  The
jury found appellant guilty, and I would affirm its verdict;
therefore, I dissent.