Theodis Kelly v. State of Arkansas

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ar04-176

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

THEODIS KELLY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 04-176

December 15, 2004

APPEAL FROM PHILLIPS COUNTY CIRCUIT COURT

HONORABLE HARVEY YATES,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Theodis Kelly was convicted of first-degree murder in a jury trial and was sentenced to sixty years in the Arkansas Department of Correction. On appeal, Kelly argues that the trial court erred in denying his motion for directed verdict based upon the sufficiency of the evidence and in admitting the prior testimony of a witness where the State failed to show a good faith effort to secure the witness's presence. We affirm.

The shooting that gave rise to Kelly's conviction occurred in 1999. Kelly's earlier conviction was reversed and remanded by this court for new trial based upon the trial court's failure to order a psychiatric evaluation, see Kelly v. State, 80 Ark. App. 126, 91 S.W.3d 526 (2002). At the retrial, the following evidence was presented. On June 1, 1999, Helena Police Officer Johnny Davis responded to a 911 call from a Helena apartment where he found Shakeylia Miller, Kelly's girlfriend, lying on a bedroom floor with what appeared to be a gunshot wound to the chest. Ms. Miller was still alive and conscious. Davis testified that Ms. Miller's young daughter was present and said, "My daddy, Golly, shot my mom." Davis stated that he had known Kelly all of his life, had seen him at Ms. Miller's residence, and knew that "Golly" was Kelly's nickname. Kimberly Tribblet testified that she and her cousin had been visiting in Ms. Miller's apartment on the evening in question and that Ms. Miller and Kelly were arguing. Ms. Tribblet testified that Kelly asked Ms. Miller to clear out her company, and when she did not respond, stated "just wait till I come back," and went into a bedroom. Ms. Tribblet and her cousin then left the apartment. Ms. Tribblet testified that a few minutes later, they heard a gunshot and saw Kelly running with a shotgun across a field. G. W. Bryson testified that he lived in an apartment across from Ms. Miller and was sitting on his porch on the evening in question. Bryson testified that he heard a loud shot and minutes later saw Kelly come out of Miller's apartment with a shotgun and run across a field.

Mark McCarty, a Helena police officer, testified that he went to the hospital and talked to members of Ms. Miller's family after the shooting, that Ms. Miller's three or four-year-old daughter was upset and crying, and that she said "my daddy shot my mommy, my daddy said you want Michael, and my mommy said no, and my daddy shot my mommy." McCarty stated that the child was referring to Kelly. McCarty further testified that he Mirandized Kelly several days later and that Kelly asked to speak to Ms. Miller's mother. McCarty overheard Kelly tell Ms. Miller's mother that he had shot her daughter, that it was an accident, that he didn't mean to do it, and that he was sorry. He stated that Kelly also said that he had the gun and was going outside to shoot someone else and that the gun fired when Ms. Miller tried to stop him. McCarty testified that, in his affidavit for arrest warrant, he stated that Kelly and Ms. Miller got into an argument about her ex-boyfriend Michael. Ms. Miller's mother, Edna Porter, testified that her daughter's relationship with Kelly was rocky, that their arguments were due to jealousy on Kelly's part, and that Kelly had threatened Ms. Miller several times in her presence. She testified that before she died, her daughter told her that "Golly" had shot her, but that she did not say that he shot her on purpose. Ms. Porter also testified that she spoke to Kelly several days later at the Helena precinct and that he apologized and said that the shooting was an accident. Dr. Steven Erickson for the State Crime Lab testified that the autopsy on Ms. Miller indicated that she suffered a close-range wound from a shotgun that was less than three feet away.

The State finally presented the sworn testimony of Tamika Lockett, who was a witness at Kelly's earlier trial, and whom the State had been unable to locate. Kelly objected on the grounds that it would violate his right to cross-examination, that it would inform the jury that he had previously been convicted, and that his cross-examination would be far different than that conducted by Kelly's attorney at the prior trial. The trial court overruled the objection, and Ms. Lockett's testimony was read to the jury. Ms. Lockett testified that she was a friend of Ms. Miller and had arrived at her apartment shortly after the shooting. She stated that Ms. Miller's daughter Mysheah was standing in the door and said, "come help my momma." Ms. Lockett found Ms. Miller lying face down on her bedroom floor surrounded by blood. Lockett further testified that she asked Mysheah what happened and that Mysheah told her that Kelly and her mom were fighting and that Kelly shot her mother and pushed her off the bed onto the floor. Ms. Lockett testified that she had heard Kelly threaten Ms. Miller several times.

At the end of the State's case, Kelly moved for directed verdict based on the lack of evidence from any of the State's witnesses that the shooting was done on purpose or with the purpose of killing Ms. Miller. Kelly argued that the only evidence as to how the incident happened was Kelly's statement made to Miller's mother and overheard by Officer McCarty that the shooting was an accident. The trial court denied the motion.

The only evidence presented by the defense was the investigative report of Officer McCarty, after which Kelly renewed his motion for directed verdict. The motion was denied, and the jury convicted Kelly of murder in the first degree.

Kelly first argues that the trial court erred by failing to grant his motions for directed verdict. He contends that, because none of the State's witnesses provided evidence to disprove his statement to the victim's mother that the shooting was accidental, the jury resorted to speculation or conjecture regarding the purposefulness of his actions.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence, whether direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Id. The evidence is viewed in the light most favorable to the State, and only evidence that supports a verdict is considered. See id. Circumstantial evidence may constitute substantial evidence; however, when the State relies solely on circumstantial evidence that evidence must point to the guilt of the accused and must exclude all other reasonable hypotheses. See Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999).

Since intent cannot ordinarily be proved by direct evidence, the jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances. Farrelly, supra. Resolution of conflicts in testimony and assessment of the credibility of witnesses are the sole province of the jury. See Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The jury is not required to believe any witness's testimony, especially that of the accused, since he is the person most interested in the outcome of the case. Id.

A person commits murder in the first degree if, with the purpose of causing the death of another person, he causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). A person acts purposely with respect to his conduct or as a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-102(1) (Repl. 1997).

With these principles in mind, and viewing only the evidence that supports the conviction, the following testimony was presented that supports the verdict. During an argument with the victim, Kelly made a threat, and procured the shotgun. Witnesses observed the argument and heard the threat. A shot was heard minutes later by several witnesses, and Kelly was seen fleeing the scene with the weapon. The victim's daughter described the shooting and identified Kelly as the person who shot her mother. Kelly admitted that he shot the victim. While Kelly claimed the shooting was an accident, the jury was free to reject that part of his statement. We cannot say that there was no substantial evidence of Kelly's purposefulness and hold that the trial court did not err in denying Kelly's motion for directed verdict on this ground.

Kelly also argues that the trial court erred in allowing admission of the prior testimony of Tamika Lockett because the State failed to show that it had made a good faith effort to secure her presence. However, we cannot address this issue on the merits because Kelly is raising it for the first time on appeal. At trial, Kelly objected to the witness's prior testimony based upon the Sixth Amendment Confrontation Clause, the fact that it would apprise the jury that there had been a previous trial and conviction, and because cross-examination in the retrial would be far different than in the previous trial.

Significantly, appellant did not argue that the witness should not be considered unavailable or that the State had failed to make a diligent effort to locate her. Any question as to the witness's unavailability cannot now be challenged on appeal. This issue is being raised for the first time on appeal, and we do not address it. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002).

Affirmed.

Pittman and Crabtree, JJ., agree.