Vincent Cooper v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

VINCENT COOPER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-818

MARCH 1, 2006

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT

[NO. CR-2002-119-3]

HON. KIRK JOHNSON,

JUDGE

AFFIRMED

Sam Bird, Judge

This appeal is taken from Vincent Cooper's convictions on retrial for aggravated robbery and attempted robbery. The charge of aggravated robbery arose from incidents that occurred at a Texarkana E-Z Mart on February 15, 2002, while the attempted-robbery charge resulted from a February 17, 2002, incident outside of the same store. In Cooper v. State, CACR 03-542 (Ark. App. Apr. 14, 2004), we reversed and remanded the convictions from his first trial, holding that the trial court had erred in admitting into evidence a taped statement by Ramona Bailey, the mother of Cooper's child.

Cooper was re-tried by a Miller County Circuit Court jury on April 26, 2005. He was convicted and was sentenced to consecutive sentences of three hundred months' imprisonment for the aggravated robbery and sixty months for the attempted robbery. He now appeals, raising four points: that the trial court violated his due-process rights "by denying indigent defendant scientific testing," that the trial court erred in declaring a witness unavailable under Ark. R. Evid. 804(a)(5), that circumstantial evidence was insufficient evidence of identity to convict him, and that the State failed to prove the elements of aggravated robbery. We affirm.

Before turning to the merits of this appeal, we direct appellant's attention to the requirements for contents of briefs under Rule 4-2(a) of the Rules of the Arkansas Supreme Court and Court of Appeals (2005). Rule 4-2(a)(5) directs that the abstract consist of an impartial condensation of only such material parts of the testimonies and colloquies as are necessary to an understanding of all questions presented to the appellate court for decision. Subsection (6) of the rule instructs that the statement of the case shall ordinarily not exceed two pages in length. Subsection (8) restricts contents of the addendum to the order, judgment, decree, ruling, letter opinion, or Workers' Compensation Commission opinion from which the appeal is taken, along with other relevant pleadings, documents, or exhibits essential to an understanding of the case and our jurisdiction on appeal (emphasis ours).

The 226-page abstract before us includes matters such as jury voir dire (62 pages), the bond hearing (9 pages), jury instructions (5 pages), closing arguments (16 pages), and the sentencing phase (14 pages). These matters have nothing to do with any of the four points on appeal, nor are most of the pleadings and documents in the 440-page addendum relevant to any of these points. Our efforts to resolve the points on appeal would have been aided considerably by appellant's adherence to the requirements for contents of briefs under Rule 4-2. See Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996) (stating that much of appellant's 575-page, three-volume abstract could have been abridged or deleted).

Sufficiency of the Evidence

Because of double-jeopardy concerns, we first address the challenges to the sufficiency of the evidence raised in Cooper's third and fourth points. See Standridge v. State, 357 Ark. 105, 112, 161 S.W.3d 815, 818 (2004). A person commits robbery "if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person commits aggravated robbery if he commits robbery and is armed with a deadly weapon "or represents by word or conduct that he is so armed." Ark. Code Ann. § 5-12-103(a) (Repl. 1997).

Michael Wheaton, the E-Z Mart clerk who was robbed on February 15, 2002, was declared an unavailable witness at retrial in 2005, and his prior recorded testimony from the first trial was introduced into evidence and read to the jury. Other evidence at retrial included testimony by Texarkana police officers Jody Stubbs and John Cochran, testimony by Ramona Bailey, and physical evidence consisting of a broken yard ornament, a jacket, a sock, and a sheet with holes cut into it.

Wheaton testified that around 3:30 a.m. on February 15, 2002, he was wiping down the counters of the E-Z Mart and turned around to see a black man wearing a sheet over his head with two holes cut for the eyes. Wheaton testified that he saw a white cloth over what appeared to be a gun barrel, and he complied with the robber's orders to hand over money from the cash register. Wheaton was unable to tell where the perceived gun was pointed. Wheaton said that the man was stocky, was shorter than Wheaton, and was wearing a checkered or plaid jacket in which the color red stood out. Wheaton said that his sinuses were "really shot," and he could not tell whether the man smelled of intoxicants. Using photographs of items that were found outside the store on February 17, Wheaton positively identified the multi-colored jacket and white mask as items that the robber had worn. Black-and-white surveillance tapes from the store also came into evidence through his testimony.

Officer Jody Stubbs testified that he was on duty on February 17, 2002, having received information about the February 15 aggravated robbery and a description of the perpetrator as a black male wearing a white mask, red-and-blue plaid jacket, and blue jeans. Stubbs testified to the following events that occurred around 1:30 a.m. on February 17, after he set up surveillance across from the E-Z Mart. Stubbs observed a black male in a red-and-blue plaid jacket, carrying something white in his hand, walking alone on the sidewalk toward the front of the store. The man was hugging the wall, "kind of looking around to see if he could spot anyone." The man spotted Stubbs's patrol car, turned around, briskly walked back in the direction he had come from, and momentarily disappeared from Stubbs's vision. Stubbs drove across the street toward the E-Z Mart, the man reappeared from behind a dumpster, and Stubbs asked him the whereabouts of the jacket that he had just been wearing. The man answered that he had not been wearing a jacket, and he tried to sidestep around Stubbs and get away. Stubbs had no doubt that the man was the individual whom he had seen just moments before. Because the man smelled heavily of intoxicants, had slurred speech and bloodshot eyes, and was a little unsteady on his feet, Stubbs arrested him for public intoxication.

Officer Cochran arrived in response to Stubbs's radio transmission, and the suspect was placed in the back seat of Cochran's patrol car. Stubbs walked to the area of the dumpster where he had last seen the suspect go. On top of a ledge by the dumpster, Stubbs found the jacket; beneath it was a white sheet with eye holes cut as if for a mask. Close to the sidewalk where the suspect had walked, Stubbs found a white sock, a piece of plastic pipe described as a "yard ornament candy cane," and another piece of white sheet. Stubbs said that the rag was wrapped tightly around the yard ornament, which looked like the cylinder of a revolver. Stubbs and his supervisor connected these items to the aggravated robbery reported two nights earlier. Cooper subsequently was charged with aggravated robbery of the E-Z Mart on February 15, 2002, and attempted aggravated robbery of the E-Z Mart on February 17, 2002.1

In court, Stubbs identified Cooper as the person he arrested on February 17, 2002. Officer Cochran testified that he assisted in the arrest of Cooper and that Cooper said he lived at Colonial Square. Cochran testified that Colonial Square was three to four blocks from the E-Z Mart that had been robbed.

Ramona Bailey testified that her address in 2002 was Colonial Square, Apartment 48, where she lived with her children. She said that Cooper did not live there, but that he came by on a regular basis to see their five-year-old son. She stated that Cooper left her residence about 10:00 the night of February 14, 2002, after giving her ten dollars for the child. She said that she and Cooper had a big altercation on February 16, that he hit her in the head, and that he left after midnight on February 17. Bailey said that Officer Ed Chattaway came to ask her questions on February 17, that he took from inside her apartment a candy-cane stick previously stuck in the ground as a yard decoration at Christmas, that "everybody" in the apartment complex had the candy-cane ornaments, and that she did not know whether the one that Chattaway took was hers. Officer Chattaway testified that the piece of plastic found inside the sock matched a piece of the plastic Christmas decoration that he recovered from Bailey's residence.

At the conclusion of the State's case and at the conclusion of all the evidence, Cooper moved for directed verdicts on both offenses. He asserted that he was identified as the perpetrator of these crimes only by circumstantial, insubstantial evidence; that no witness was "able to identify a black assailant that came into the store by his facial features, eyes"; and that his due-process rights were violated because he was not allowed to obtain possible exculpatory evidence by court-ordered scientific testing on the candy cane, mask, sock, and coat. Regarding the aggravated robbery of February 15, he stated that there was no evidence that the assailant threatened any harm or acted in a manner that would cause a person to believe that he intended to use deadly force or cause serious injury. Regarding February 17, he stated that there was no evidence that the assailant was going to commit a theft, and that he never took action in furtherance of the crime of attempted robbery. Finally, he asserted that no evidence linked him to the three items found by the dumpster.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other without resorting to suspicion or conjecture. Id. In determining whether the evidence is substantial to support a conviction, the appellate court views the evidence in the light most favorable to the appellee, only considering the evidence that supports the guilty verdict. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997).

We disagree with Cooper's third point on appeal, that the State did not introduce sufficient evidence that he was the perpetrator of the aggravated robbery and attempted robbery. Officer Stubbs testified that Cooper, wearing the plaid jacket and carrying something white, was walking next to the E-Z Mart in the early morning of February 17; he and his clothing matched information that Stubbs had received about the perpetrator of an armed robbery at the store on February 15. After noticing Officer Stubbs, Cooper briskly walked away and reappeared without the white object or the jacket. In the area where Cooper momentarily disappeared, Stubbs found the jacket, a sheet with eye holes in it, and a white sock wrapped around a broken plastic candy cane. The other piece of the candy cane was found in the nearby apartment where Cooper had visited shortly before the times of both offenses. Cooper argues on appeal that there are gaps and inconsistencies in the descriptions Wheaton gave of the robber, that Officer Stubbs did not have him in his line of sight the entire time, and that Bailey stated there were numerous candy-cane ornaments in her neighborhood. These arguments, however, were matters within the realm of the jury.

Cooper's fourth point on appeal is that there was not sufficient proof that he threatened Wheaton with physical force by representing that Cooper was armed with a deadly weapon. Wheaton, however, testified that he perceived that the robber had a cloth-wrapped gun in his hand when he demanded money. This testimony is sufficient proof that Cooper represented that he was armed with a deadly weapon. See Clemmons v. State, 303 Ark. 354, 357, 796 S.W.2d 583, 585 (1990); Duncan v. State, 267 Ark. 41, 43, 588 S.W.2d 432, 433-34 (1979).

Defense Motion for Scientific Testing

Cooper contends that the trial court violated his due-process rights "by denying indigent defendant scientific testing" of the white sheet, the plaid jacket, the white sock, and the plastic candy cane that Officer Stubbs found by the E-Z Mart on February 17, 2002. The trial court, noting that Cooper's motion was not made until his retrial, expressed concern that the jury and "nearly every witness" had handled the exhibits during the first trial and that the items had been stored in the court reporter's non-sterile environment since then. The court stated, "It's the reliability factor that I'm looking at more than whether he's entitled to it or not.... I think under normal circumstances, if this were ... back when the items were seized, I don't think there would be any doubt that he would be entitled to have those tests done."

Cooper's motion at trial was based in part on Ark. Code Ann. §§ 16-112-201 and -202, which address motions based on scientific evidence. Those statutes, however, concern motions for scientific evidence on behalf of a person convicted of a crime and seeking habeas corpus relief when direct appeal is unavailable. Because the present case is before us on direct appeal, the statutes are inapplicable. Furthermore, in State v. Pulaski County Circuit Court, 316 Ark. 514, 515-16, 872 S.W.2d 414, 415-16 (1994), our supreme court ruled that a trial court lacks authority under both the federal and state constitutions to order the State to pay for DNA testing on the mere possibility that the results might exculpate a defendant.

As summarized in points three and four, we have held that circumstantial evidence was sufficient to identify Cooper as the perpetrator of the aggravated robbery. Furthermore, Cooper does not dispute the trial court's finding that the items he sought to have tested were contaminated. We agree with the State that the probable value of the testing Cooper sought was extremely low and that his "undeveloped assertions" did not mandate expert assistance under the Due Process Clause.

Unavailable Witness

On the morning of trial, the State informed the trial court that it had been unable to locate Michael Wheaton, the victim of the E-Z Mart robbery. The State requested that Wheaton be declared an unavailable witness so that his testimony from the first trial could be read to the jury. Cooper objected, arguing that this was a violation of his Sixth Amendment rights to confrontation and cross-examination and that the State had not made a showing of good-faith efforts to contact Wheaton. The State presented testimony of two law enforcement officers who testified about efforts to locate Wheaton.

Under Ark. R. Evid. 804(b)(1) (2005), testimony given by a witness at another hearing of the same proceeding is not excluded by the hearsay rule if the declarant is unavailable, if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. The party offering testimony under these provisions has the burden of proving that the witness is unavailable and that it has made good-faith efforts to procure the witness. Register v. State, 313 Ark. 426, 428, 855 S.W.2d 320, 322 (1993). A good-faith effort does not require that every possible avenue for locating a witness be employed. Vick v. State, 314 Ark. 618, 623, 863 S.W.2d 820, 823 (1993). A trial court's decision to admit former testimony under Rule 804(b)(1) will not be reversed absent an abuse of discretion. Lewis v. State, 288 Ark. 595, 598, 709 S.W.2d 56, 57 (1986).

David Slater, a Miller County deputy sheriff, testified that on April 7, 2005, he went to 2403 Short Beach, Apartment 4, an address that the prosecutor had given him. After knocking and receiving no answer, he left his card on the door. No one called him about the card, but it was gone when he returned the next day. He left no message on the answering machine when he tried to call the telephone number on the sign for the Beachdale Apartments. He looked up the telephone number for the apartments and a manager answered; she told him that no one named Michael Wheaton lived there.

Slater testified that he also contacted the utility companies: gas, water, electric, and telephone. None had services registered in the name of Michael Wheaton. Slater also checked utilities for a couple of other addresses that the sheriff's office had for Wheaton, including 1012 Grand Street near the E-Z Mart. The electric company at one time had service for Wheaton at the 1012 address, it was disconnected in November 2004, and the company had no current service for him in the area. Slater found no record of utilities at other addresses, and he was unable to find Wheaton at any of them.

Under cross-examination, Slater admitted that he had not obtained information from the Arkansas Employment Security Division to determine whether it showed any employer's contributions for him in the last quarter. Slater said that he had not checked with the Social Security Administration for a current employer because the office was in Texas and he did not believe that he could get the information without a subpoena; he said that he had not tried to get a Texas tribunal to issue a subpoena for release of records. Slater admitted not checking with E-Z Mart as to whether they had new employment information on Wheaton. The prosecutor, however, stated as an officer of the court that his office had received a letter from E-Z Mart on March 11, 2005, informing his office that Wheaton's employment had terminated at the store on September 24, 2004, and that the last known address on its file was 1012 Grand Street, Apartment C.

Officer Bobby Jordan of the Texarkana Police Department testified that he began trying to locate Michael Wheaton in March 2005. He said that he went to two addresses provided by E-Z Mart, the Seventh Street Apartments on Highway 67 and the most recent address at 1012 Grand, which was the last one that E-Z Mart had. Jordan talked to the Grand Street property owner, who said that he did not know Wheaton or his whereabouts. Jordan said that Grand was the last known address given by Walgreens, where Wheaton had worked at the time of the last hearing. Jordan said that he used every resource his department had, including an internet program called Accurint, which he described as a person search using telephone numbers, address, and social security numbers. The address he found on Accurint was 2403 South Beach, Apartment 4, which he provided to the prosecutor's office. Jordan said that he checked with three local utility companies, and they had no services registered for Wheaton.

Jordan testified on cross-examination that he asked Walgreens whether Wheaton had left a forwarding address, but that they had nothing. He admitted that he did not ask whether Wheaton's W-2 had been returned to Walgreens. Like Slater, he testified that he did not request information from the Employment Security Division. He stated his belief that he probably could not obtain such information without a subpoena, but he said that there was no reason he could not obtain a subpoena in order to get such information.

At the conclusion of the officers' testimony the State asked the trial court to find that good-faith, reasonable efforts had been made to locate Wheaton, and also asked that Wheaton be declared an unavailable witness and that his prior testimony be allowed. Cooper responded that the State's efforts should have included obtaining subpoenas for information from the Employment Security Division and the Social Security Administration about any benefits being paid to Wheaton or any contributions on his behalf. Cooper argued that the introduction of Wheaton's prior testimony would deprive Cooper of his Sixth Amendment rights to confrontation and cross-examination. The trial court ruled that the testimony would be allowed, explaining as follows:

The Court finds that a reasonable good-faith effort has been made by the State in this matter. The Court takes notice that a state subpoena issued to the Social Security Administration would not be honored because of privacy reasons. A subpoena issued to the Arkansas Employment Security Division may or may not have been successful because there's no knowledge by the Court, or apparently by the officers, as to the location of Mr. Wheaton. It's not known whether he's in the State of Arkansas or outside the State of Arkansas.

The trial court's ruling did not address Cooper's objection that his Sixth Amendment rights to confrontation and cross-examination would be violated by the admission of Wheaton's testimony. Thus, the issue is not preserved for our review. Bertrand v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 6, 2005). As for evidence of a good-faith effort to locate Wheaton, the prosecution issued a subpoena for Wheaton, visited known addresses, and attempted to locate him through local utilities, two previous employers, two previous landlords, and an internet service. We hold that the trial court did not abuse its discretion by admitting Wheaton's former testimony at his retrial.

Affirmed.

Glover and Crabtree, JJ., agree.

1 At a pretrial hearing of April 25, 2005, the prosecutor informed the trial court that an amended information had been filed that morning, changing the February 17, 2002, charge of attempted aggravated robbery to attempted robbery.

The prosecutor stated that this court's previous opinion "adopted a mistake that apparently was made by both [parties'] attorneys," reciting convictions for aggravated robbery and attempted aggravated robbery "when in fact the jury convicted him of aggravated robbery and attempted robbery," the lesser-included offense on the second count. Cooper waived formal arraignment on that issue at the pretrial.