Alfonzo Hendrix v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV
CACR05-180
MARCH 22, 2006
ALFONZO HENDRIX
APPELLANT
AN APPEAL FROM THE NEVADA
C O U N TY CIR C UIT COURT [CR 2004-35-1]
V.
STATE OF ARKANSAS
HONORABLE JIM GUNTER, JUDGE
APPELLEE
AFFIRMED
OLLY NEAL, Judge
Appellant Alfonzo Hendrix appeals from a ten-year sentence for his aggravated-robbery
conviction by a Nevada County jury. For reversal, appellant advances seven points: (1) there
was insufficient evidence to convict him; (2) the evidence presented to the jury was a case of
robbery; (3) the show-up identification was unconstitutionally tainted and should have been
suppressed; (4) the in-court identification should have been suppressed; (5) he was improperly
denied his rights under Ark. R. Evid. 804 to impeach Shekitha Bryant with her confession
to James Walker that she committed the crime in question; (6) the clothes found in his home
should have been suppressed as a violation of the United States and Arkansas Constitutions;
and (7) the out-of-court identification by the victim was fruit of the poisonous
tree of the illegal search of appellant’s house. Finding no error, we affirm.
At trial, Carl Vaughn testified that, at a few minutes after 1:00 a.m. on March 6, 2004,
he had just arrived at his Prescott home from his job at Petit Jean Poultry in Gum Springs
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Industrial Park and was reaching under the front seat of his car to get a pack of cigarettes
when he felt someone’s hand in his pocket. As Vaughn turned around, the perpetrator “fell”
on Vaughn and pushed him into the car. Vaughn called out to his wife to contact the police,
and as Vaughn tried to get out of the car, the perpetrator, a man Vaughn recognized from
the neighborhood, swung a long stick at him. The stick hit the car, but not before shattering
and hitting Vaughn under his eye. Vaughn recalled that his perpetrator wore a pair of black
jeans, an old, dark-looking jacket, and an old cap pulled down around his head. The
perpetrator took Vaughn’s billfold that contained about six dollars, his license, and medical
cards. As the perpetrator ran off, Vaughn threw the stick at him. Vaughn further testified
that, although he knew where his perpetrator used to live, he could not remember his name.
According to Vaughn, Officer Chris Fincher asked him if the man’s name was “Alfonzo,” to
which Vaughn responded in the affirmative.
Officer Chris Fincher was dispatched to Vaughn’s home. He testified that Vaughn had
told him that he knew his assailant because he walked by his home often and had worked
with him, and that, although he did not know his last name, the man’s name was “Alfonzo.”
Officer Fincher testified that he knew Vaughn was talking about appellant; therefore, he and
Officer Scott Sundberg left the scene and went to appellant’s home. Fincher testified that
they went to the door, and appellant answered. The officers told appellant what had just
happened and asked if he knew Vaughn. Officer Fincher testified that appellant told them
that he had not committed the crime and that he had just returned from the Shell gas station
where he purchased himself a sandwich, chips, and a coke. Officer Fincher further stated that
appellant invited them into his home to show them his recent purchase. Once inside, the
officers noticed a pile of clothes on the floor beside appellant’s bed. The items resembled
those that Vaughn described his perpetrator as wearing during the incident. When asked
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about the clothes, appellant stated that he had worn those clothes to work and had
subsequently changed. Officer Fincher noted that he and Officer Sundberg looked in the
clothing to see if a weapon or billfold was present. They found neither. However, Officer
Sundberg found a red lined hat, which the officer believed resembled the one described to
them by Vaughn.
Officer Fincher went back to Vaughn’s home and brought him back to appellant’s
home. Officer Sundberg testified that he waited outside with appellant until Officer Fincher
arrived with Vaughn. Once Vaughn identified appellant as his perpetrator, appellant was
placed under arrest.
At trial, appellant testified that he did not commit this crime. Also,
James Walker, a man who claimed to be with appellant on the night in question, testified on
appellant’s behalf. He testified that a neighbor named Shekitha Bryant, who he testified was
similar in build to the appellant, admitted to him that she had committed this crime. Bryant
denied making such an admission to Walker. In response, appellant’s counsel sought to
impeach her based on the admission to Walker. The State objected, and the trial court
sustained that objection. Subsequently, appellant was convicted of the charges against him,
and it is from that conviction that he now brings this appeal.
Double jeopardy considerations mandate that we address the sufficiency of the
evidence prior to any other assignments of trial error. See Williams v. State, ___ Ark. ___, ___
S.W.3d __ (Oct. 6, 2005). We treat a motion for directed verdict as a challenge to the
sufficiency of the evidence. Bowker v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 29, 2005).
The test for determining the sufficiency of the evidence is whether the verdict is supported
by substantial evidence, direct or circumstantial. Williams v. State, supra. Substantial evidence
is evidence that is of sufficient certainty and precision to compel a conclusion one way or the
other and pass beyond mere suspicion or conjecture. Bowker v. State, supra. On appeal, we
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view the evidence in the light most favorable to the State, considering only that evidence that
supports the verdict. Id. Additionally, when reviewing a challenge to the sufficiency of the
evidence, we consider all the evidence, including that which may have been inadmissible, in
the light most favorable to the State. Williams v. State, supra. Witness credibility is an issue
for the fact-finder, who is free to believe all or a portion of any witness’s testimony and whose
duty it is to resolve questions of conflicting testimony and inconsistent evidence. Lefever v.
State, ___ Ark. App. ___, ___ S.W.3d ___ (May 18, 2005).
Although appellant does not properly abstract his motion for directed verdict, a review
of the record reveals that appellant’s motion was made and properly renewed. As he argued
below, appellant asserts that there was insufficient evidence to convict him of aggravated
robbery because there was no evidence to establish that he inflicted or intended to inflict
death or serious physical injury to Mr. Vaughn. We find no merit in this argument.
A person commits aggravated robbery if he commits a robbery and (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. Ark. Code Ann. §
5-12-103 (Repl. 1997). A person acts purposefully with respect to his conduct when it is his
conscious object to engage in conduct of that nature or cause such a result. See Ark. Code
Ann. § 5-2-202(1) (Repl. 1997). Intent or purpose to commit a crime is seldom proven by
direct evidence and often is inferred from the circumstances. Jones v. State, 72 Ark. App. 271,
35 S.W.3d 345 (2000). Thus, a presumption exists that a person intends the natural and
probable consequences of his acts because of the difficulty in ascertaining a person’s intent.
Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). Also, the jury is allowed to draw
upon its common knowledge and experience to infer intent in reaching a verdict from the
facts directly proved. Robinson v. State, 293 Ark. 243, 737 S.W.2d 153 (1987).
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In the instant matter, Vaughn testified that appellant pushed him into the car and then
tried to hit him with a long stick. The code does not require Vaughn to have sustained
serious physical injury. The statute clearly requires just that a person who commits a robbery
is either armed with a deadly weapon or represents by words that he is so armed, or that he
inflicts or attempts to inflict death or serious physical injury to another. Germane to this case
is the fact that Vaughn noted that his perpetrator swung a long stick at him, and obviously,
the perpetrator attempted to inflict serious physical injury to Vaughn by doing so. When the
stick retracted from hitting the car, pieces of the stick hit Vaughn under his eye, causing him
to bleed. The jury was allowed to draw upon its common knowledge and experience, and
it was presumable that the natural and probable consequence of swinging a stick at someone
is that it would cause serious physical injury. Accordingly, as substantial evidence supports
the verdict, we affirm on this point.
Appellant argues second that the evidence, although insufficient to prove aggravated
robbery, could support a finding of robbery. He asks this court to reduce the charge and
sentence him or remand the case to the trial court for sentencing. The State charged
appellant, by felony information, with aggravated robbery. Whether the evidence was
sufficient to support such a charge was a question for the jury to decide, see Barnes v. State, 346
Ark. 91, 65 S.W.3d 389 (2001), and we will not attempt to second guess its determinations.
See Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002).
As his third, fourth, and seventh points on appeal, appellant argues that the “show up”
or out-of-court identification, as well as the in-court identification of him, was
unconstitutionally tainted and should have been suppressed. The State argues that these
arguments are procedurally barred because appellant failed to raise a contemporaneous
objection to the identification at trial. We agree with the State. In Edwards v. State, ___ Ark.
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___, ___ S.W.3d ___ (Jan. 27, 2005), our supreme court held that, when an appellant files
a motion prior to trial requesting that the out-of-court identifications made by the witnesses
be suppressed and the appellant does not object to the in-court identifications, his failure to
object to the in-court identifications bars our review. Accordingly, we do not address these
points.
However, had these arguments been preserved for our review, we would nevertheless
have affirmed. It is the trial court’s responsibility to determine if there are sufficient aspects
of reliability in an identification to allow its introduction as evidence. Millholland v. State, 319
Ark. 604, 893 S.W.2d 327 (1995).
We do not reverse a trial court’s ruling on the
admissibility of an identification unless it is clearly erroneous. Id. It is appellant’s burden to
prove that a pretrial identification was suspect. Fields v. State, 349 Ark. 122, 76 S.W.3d 868
(2002).
A pretrial identification violates due process when there are suggestive elements in the
identification procedure that make it all but inevitable that the victim will identify one person
as the perpetrator. See Fields v. State, supra. Nevertheless, even when the process is suggestive,
the circuit court may determine that, under the totality of the circumstances, the identification
was sufficiently reliable for the matter to be decided by the jury. Id. However, when the
identification is followed by an in-court identification, we will not set aside the conviction
unless the identification was so suggestive as to create a substantial possibility of
misidentification. See id. (citing Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995)). In
determining reliability, the following factors are considered: (1) the prior opportunity of the
witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3)
any identification of another person prior to the pretrial identification procedure; (4) the level
of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the
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defendant on a prior occasion; and (6) the lapse of time between the alleged act and the
pretrial identification procedure. Fields v. State, supra; see also United States v. Martin, 391 F.3d
949 (8th Cir. 2004).
In the instant case, the identification process employed by the officers was unnecessarily
suggestive and conducive to irreparable mistaken identification. In Stovall v. Denno, 388 U.S.
293 (1967), the Supreme Court reviewed the practice of showing a suspect singly for purposes
of identification and the claim that the practice was so unnecessarily suggestive and conducive
to irreparable mistaken identification that it constituted a denial of due process of law. The
Court noted that the practice “has been widely condemned,” but concluded that “a claimed
violation of due process of law in the conduct of a confrontation depends on the totality of
the circumstances surrounding it.” 388 U.S. at 302; see also Neil v. Biggers, 409 U.S. 188
(1972) (there was no due-process violation based on the totality of the circumstances because
there was no substantial likelihood of misidentification where the victim had been in her
assailant’s presence for some time and had directly observed him, described her assailant, and
made no identification of others presented at previous showups, lineups, or through
photographs).
Here, under the totality of the circumstances and applying the reliability factors, there
was no substantial likelihood of misidentification because Vaughn had a significant
opportunity to view appellant. Indeed, Vaughn testified that he saw appellant’s face when he
(appellant) spun Vaughn around and pushed him into the car after trying to lift Vaughn’s
wallet from his pocket. Although Vaughn did not identify appellant by name, he told the
officers that he knew his assailant from the neighborhood and had worked with him at one
time. Vaughn described in detail what his assailant was wearing, and when presented with
a suspect, Vaughn immediately identified appellant as the perpetrator. The time between the
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identification and the crime was minimal. For these reasons, although the identification was
suggestive, it did not create a substantial likelihood of irreparable misidentification when
viewed from the totality of the circumstances.
This brings us to appellant’s sixth argument that the clothes found in his home should
have been suppressed as a violation of the United States and Arkansas Constitutions because
the officer’s use of the knock-and-talk procedure to gain entry into the home and the officers
did not inform him of his right to refuse consent to a warrantless search. When we review a
denial of a motion to suppress the evidence, we conduct a de novo review based on the
totality of the circumstances, reviewing findings of historical facts for clear error and
determining whether those facts give rise to reasonable suspicion or probable cause, giving due
weight to inferences drawn by the circuit court. Simmons v. State, 83 Ark. App. 87, 118
S.W.3d 136 (2003). Here, we conclude that the circuit court did not err in denying
appellant’s motion to suppress because the police’s action of going to the appellant’s home in
order to request his assistance in a criminal investigation did not amount to a “seizure” under
the Fourth Amendment. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002).
In Jackson v. State, 86 Ark. App. 39, 158 S.W.3d 715 (2004) and Jennings v. State, 69
Ark. App. 50, 10 S.W.3d 105 (2000), we held that, pursuant to Ark. R. Crim. P. 2.2, an
officer may seek cooperation from an individual while investigating a crime. In the present
case, Officer Fincher was investigating a robbery when he made contact with appellant. He
and Officer Sundberg went to appellant’s home and knocked. When appellant answered the
door, Officer Fincher informed appellant of his reason for being there and asked appellant if
he knew Vaughn. Appellant informed the officers that he was not in the area at the time of
the crime and that he had went to the Shell gas station to buy himself something to eat.
Thereafter, appellant invited the officers inside to show them his food; while inside, the
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officers noticed in plain view items of clothing that matched the description given by Vaughn.
Police officers legitimately at a location and acting without a search warrant may seize an
object in plain view if they have probable cause to believe that the object is either evidence
of a crime, fruit of the crime, or an instrumentality of a crime. Love v. State, 355 Ark. 334,
137 S.W.3d 383 (2003). Because the officers were able to see the robbery-related items in
plain view, there was probable cause to seize those items. Accordingly, we affirm the circuit
court’s denial of the motion to suppress.
Appellant’s final argument on appeal is that the trial court erred in denying his right
under Ark. R. Evid. 804 to impeach Shekitha Bryant with her confession to James Walker
that she committed the crime in question. He claims that her out-of-court statement was an
exception to the hearsay rule as a statement against interest under Rule 804(b)(3) or as residual
hearsay under Rule 803(24). Trial courts have broad discretion in deciding evidentiary issues,
and their decisions are not reversed absent an abuse of discretion. Mendiola v. State, ___ Ark.
App. ___, ___ S.W.3d ___ (Sept. 28, 2005).
Rule 804(b)(3) provides:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
....
(3) Statement against interest. A statement which was at the time of its making so far
contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject
him to civil or criminal liability or to render invalid a claim by him against another
or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his
position would not have made the statement unless he believed it to be true. A
statement tending to expose the declarant to criminal liability and offering to exculpate
the accused is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
Rule 803(24) reads as follows:
(24) Other Exceptions. A statement not specifically covered by any of the foregoing
exceptions but having equivalent circumstantial guarantees of trustworthiness, if the
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court determines that (i) the statement is offered as evidence of a material fact; (ii) the
statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and (iii) the
general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known to the adverse party
sufficiently in advance to provide the adverse party with a fair opportunity to prepare
to meet it, his intention to offer the statement and the particulars of it, including the
name and address of the declarant.
Reading the first rule—804(b)(3)—we note that Bryant was clearly available. According to
the Arkansas Rules of Evidence, a witness is “unavailable” only if she is absent from the
hearing and the proponent of her statement has been unable to procure her attendance or
testimony by process or other reasonable means. Ark. R. Evid. 804(a)(5). Here, Bryant was
subpoenaed and ultimately called as a witness by defense counsel. Once on the stand, Bryant
denied making a statement to Walker about robbing Vaughn. Walker’s statement, which
tended to expose Bryant to criminal liability and was offered to exculpate appellant, was
inadmissible because it lacked corroborating circumstances that clearly indicated the
trustworthiness of the statement.
Reading the second rule—803(24), also known as the residual hearsay exception,—
the circuit court has considerable latitude under Ark. R. Evid. 803(24) to admit evidence that
the court feels meets the spirit of the rule. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891
(2004). This exception was intended to be used very rarely, and only in exceptional
circumstances. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002). The rule is inapplicable
because the requirements of the rule were not met. First, appellant failed to give the State
advance notice that Rule 803(24) would be used at trial. The rule clearly requires this. Nor
did the trial court make the necessary findings that the hearsay statement (1) is material, (2)
is more probative than other evidence, and (3) serves the interests of justice, as required by
the rule. Because these criteria were not met, we decline to hold that the trial court abused
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its discretion by not admitting the statement under Rule 803(24). See Flores v. State, supra.
Affirmed.
G LADWIN and G RIFFEN, JJ., agree.
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