Key v. State

Anthony KEY v. STATE of Arkansas

CR 96-121                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 17, 1996


1.   Evidence -- sufficiency of -- factors on review. -- In
     reviewing the sufficiency of the evidence, the evidence is
     considered in a light most favorable to appellee and affirmed
     if there is substantial evidence to support the verdict;
     evidence is substantial if it is of sufficient force and
     character to compel reasonable minds to reach a conclusion and
     pass beyond suspicion and conjecture; only the evidence that
     supports the conviction is considered, without weighing it
     against other evidence favorable to the accused;
     circumstantial evidence alone may constitute substantial
     evidence when every other reasonable hypothesis consistent
     with innocence is excluded; once the evidence is determined to
     be sufficient to go to the jury, the question of whether the
     circumstantial evidence excludes any other hypothesis
     consistent with innocence is for the jury to decide.

2.   Criminal law -- capital murder -- premeditation & deliberation
     discussed. -- Premeditation and deliberation are not required
     to exist for any particular length of time and may be formed
     in an instant; in capital murder cases, premeditation and
     deliberation may be inferred from the circumstances of the
     case, which include the type and character of the weapon used,
     the manner in which the weapon was used, the nature, extent,
     and location of the wounds inflicted, and the conduct of the
     accused.

3.   Evidence -- substantial evidence from which jury could
     conclude appellant acted with premeditated and deliberated
     purpose -- appellant's argument without merit. -- There was
     substantial evidence from which a jury could conclude, without
     speculating, that appellant acted with a premeditated and
     deliberated purpose to cause the death of the victim where
     appellant used a sawed-off, 12-gauge shotgun loaded with
     double-00 buckshot; the shots were fired into the trailer at
     head-level; and the shots appeared to have been aimed at a
     certain target as they followed the victim when she moved from
     the doorway of her home to the bedroom; the jury determined
     that the evidence excluded every other hypothesis consistent
     with appellant's innocence, and they were not persuaded by
     appellant's evidence; the credibility determination by the
     jury was affirmed upon substantial evidence. 

4.   Trial -- competency to stand trial -- test for determining
     competency. -- A criminal defendant is presumed to be mentally
     competent to stand trial, and the burden of proving
     incompetence is on that defendant; the test for determining an
     accused's competency to stand trial is whether he is aware of
     the nature of the proceedings against him and is capable of
     cooperating effectively with his attorney in the preparation
     of his defense; on appellate review of a finding of fitness to
     stand trial, the court will affirm if there is substantial
     evidence to support the trial court's finding.  

5.   Trial -- appellant knew he had been charged with murder --
     substantial evidence existed that appellant was competent to
     stand trial. -- An accused need not identify with specificity
     the charges filed against him; rather, he must have the
     capacity to "understand the proceedings against him"; here,
     both doctors from the state hospital testified that appellant
     knew he had been charged with murder, that appellant was aware
     of the nature of the charges against him, that appellant
     cooperated in their examinations and with others at the state
     hospital, and that appellant could assist in his defense;
     their testimony constituted substantial evidence to support
     the trial court's conclusion that appellant was competent to
     stand trial.  

6.   Criminal law -- voluntariness of confession -- factors on
     review. -- When the voluntariness of a confession is in issue,
     an independent determination of voluntariness is made based
     upon the totality of the circumstances surrounding the
     confession; the trial court's finding of voluntariness is not
     reversed unless it is clearly against the preponderance of the
     evidence; some of the factors considered are the age,
     education, and intelligence of the accused; the advice or lack
     thereof on constitutional rights; the length of the detention;
     the repeated or prolonged nature of the questioning; and the
     use of physical punishment; a custodial confession is presumed
     involuntary, and the burden is on the State to show that the
     confession was voluntarily made.

7.   Criminal law -- when confession is invalid -- appellant
     clearly understood his rights. -- A confession obtained
     through a false promise of reward or leniency is invalid;
     where, however, the only evidence that appellant's custodial
     statement was obtained through a false promise of reward came
     from appellant's testimony at the suppression hearing, and
     where in his statement he clearly stated that the detective
     had advised him of his Miranda rights in a manner that he
     understood, that no one had made any threats or promises in
     exchange for the statement, and that he was giving the
     statement "of [his] own free will," the issue was one of
     credibility that the trial court assessed in favor of the
     State. 

8.   Criminal law -- determining voluntariness of confession --
     trial court's finding of voluntariness not clearly against
     preponderance of evidence. -- While age and mental capacity
     are factors to consider in determining the voluntariness of a
     confession, these factors alone are not sufficient to require
     suppression; in addition, a low score on an intelligence
     quotient test does not render an accused incapable of
     voluntarily giving a confession; where appellant was age
     eighteen when he was interrogated, had an IQ of 72, and read
     at the third-grade level, the trial court's finding of
     voluntariness was not clearly against the preponderance of the
     evidence.


     Appeal from Pulaski Circuit Court, Fourth Division; John W.
Langston, Judge; affirmed.
     Didi H. Sallings, Executive Director, by:  Teri Chambers, for
appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.


     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 6-17-96   *ADVREP*SC3*





ANTHONY KEY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 96-121



APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, FOURTH DIVISION,
NO. CR 94-1368,
HON. JOHN W. LANGSTON, JUDGE,



AFFIRMED.






     Appellant, Anthony Key, appeals a judgment of the Pulaski
County Circuit Court convicting him of capital murder and
sentencing him to life imprisonment without parole.  Jurisdiction
of this appeal is properly in this court.  Ark. Sup. Ct. R. 1-
2(a)(2).  Appellant presents three arguments for reversal of the
judgment entered pursuant to a jury verdict.  We find no merit to
the arguments and affirm.
     Appellant's first argument for reversal is that the trial
court erred in denying his motions for directed verdict.  At trial,
appellant moved for a directed verdict at the close of the state's
case, contending the state had not proven that appellant acted with
the premeditated and deliberated purpose of causing a person's
death.  Appellant presented defense witnesses and then renewed the
motion for directed verdict at the close of his evidence, adding as
additional grounds that he was incapable of forming the requisite
mental state.  Appellant then renewed the motion at the close of
the state's rebuttal evidence and again at the close of his
surrebuttal evidence.
     Appellant's initial motions were sufficiently specific to
apprise the trial court of the particular evidence he claimed was
lacking.  The renewal motions were likewise sufficient to preserve
the argument for our review.  Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Durham v. State, 320 Ark. 689, 899 S.W.2d 470
(1995).  Although appellant asks us to review the evidence as it
existed both at the close of the state's evidence and again at the
close of the case,  appellant waived his former motion for directed
verdict by presenting evidence in his defense.  Therefore, we
decide his challenge to the sufficiency of the evidence as the
evidence existed at the close of the case when he renewed his
former motions.  Rudd v. State, 308 Ark. 401, 825 S.W.2d 565
(1992).
     In reviewing the sufficiency of the evidence, we consider the
evidence in a light most favorable to appellee and affirm if there
is substantial evidence to support the verdict.  Nance v. State,
323 Ark. 583, 918 S.W.2d 114 (1996).  Evidence is substantial if it
is of sufficient force and character to compel reasonable minds to
reach a conclusion and pass beyond suspicion and conjecture.  Id. 
We consider only the evidence that supports the conviction without
weighing it against other evidence favorable to the accused. 
Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992). 
Circumstantial evidence alone may constitute substantial evidence
when every other reasonable hypothesis consistent with innocence is
excluded.  Nance, 323 Ark. 583, 918 S.W.2d 114.  Once the evidence
is determined to be sufficient to go to the jury, the question of
whether the circumstantial evidence excludes any other hypothesis
consistent with innocence is for the jury to decide.  Hadley v.
State, 322 Ark. 472, 910 S.W.2d 675 (1995); Missildine v. State,
314 Ark. 500, 863 S.W.2d 813 (1993); Lolla v. State, 179 Ark. 346,
15 S.W.2d 988 (1929).
     Because appellant does not dispute that he killed the victim,
we need not recite the evidence in great detail.  Suffice it to say
that appellant shot and killed Lisa Williams as she was looking out
the window of her trailer following an argument she had with
appellant's sister.  The only issue we need determine is whether
there is substantial evidence to support a finding that he acted
with the premeditated and deliberated purpose of causing death.
     As applied to this case, a person commits capital murder if,
"[w]ith the premeditated and deliberated purpose of causing the
death of another person, he causes the death of any person[.]" 
Ark. Code Ann.  5-10-101(a)(4) (Repl. 1993).  Premeditation and
deliberation are not required to exist for any particular length of
time and may be formed in an instant.  Ward v. State, 298 Ark. 448,
770 S.W.2d 109 (1989); Ford v. State, 276 Ark. 98, 633 S.W.2d 3,
cert. denied, 459 U.S. 1022 (1982).  Premeditation and deliberation
may be inferred from the circumstances of the case, which include
the type and character of the weapon used, the manner in which the
weapon was used, the nature, extent, and location of the wounds
Ark. inflicted, and the conduct of the accused.  Kemp v. State, 324
Ark. 178, ___ S.W.2d ___ (1996); Farris, 308 Ark. 561, 826 S.W.2d 241.
     The type of weapon used was a 12-gauge shotgun.  As for the
character of the weapon, appellant described it in his statement as
being sawed-off at both ends.  Three 12-gauge shell casings were
recovered at the scene.  Investigating officers described the shell
casings as being mag load, double-00 buckshot, two and three-
quarter inch.  The officers estimated that the victim fell backward
six feet from the window where she was looking outside when she was
shot.  According to the associate medical examiner, she suffered
eleven entrance wounds from a single shotgun blast that caused
multiple penetrations and perforations of her head, neck, chest,
and right arm.  
     Willie Williams, the victim's husband, testified that he and
his wife were at home in their trailer when they heard a gunshot. 
He stated that they went to the doorway and saw appellant shooting
at the trailer next door.  He then saw appellant turn and shoot in
their direction, with the shot hitting the corner of the doorway
where they stood.  Mr. Williams stated that his wife then went to
the bedroom while he remained near the doorway and called 911.  He
testified that, while still on the phone to 911, he saw appellant
moving closer to their trailer in their direction.  He stated that
when he went to the bedroom he saw his wife looking out the corner
of the window; he then heard another shotgun blast and she fell
backwards.  
     A total of five shots were fired at the scene.  One shot hit
the trailer next to the Williamses', and one shot hit the
Willliamses' car.  Three shots hit the Williamses' trailer, one on
the north side near the doorway where the Williamses stood when
they heard the first shot, and two at the west end near the corner
of the window where the victim was looking outside.  One of these
hit above the window and the other hit the corner of the window. 
Photographs of the crime scene indicated that the shot that hit
near the doorway and the shot that hit the corner of the window
were both fired at head level.
     On appeal, appellant's argument is twofold.  First, he  argues
that the number and scattering of the blast patterns indicate he
acted with an intent to scare or to cause property damage, rather
than to kill the victim.  Second, he argues that he was incapable
of forming the mental state of premeditated and deliberate purpose
to kill because, given the quick period of time between the
argument and the homicide, he was unable to weigh consequences in
his mind and to cope with the stress of the fight between his
sister and the victim.  In support of this argument, appellant
relies on testimony from Charlotte Bull, appellant's former special
education teacher; Drew Camp, a licensed psychological examiner for
the North Little Rock School District; and Dr. James Moneypenny, a
psychologist.  Collective testimonies of these three witnesses
revealed that appellant had an IQ of 72, which borders on the
mildly-mentally-retarded range, and was reading at the third-grade
level when he quit school approximately two years prior to the 
homicide; that he had diminished reasoning abilities when under
stress; and that he had difficulty developing coping skills. 
Dr. Moneypenny opined that, given appellant's lack of abilities and
the stress of his sister being involved in a fight, appellant was
functioning under a diminished capacity on the date of the
homicide.  He also testified that the fact that the gunshots were
scattered and disorganized was consistent with his opinion of
appellant's diminished capacity.
     We are convinced there was substantial evidence from which a
jury could very easily conclude, without speculating, that
appellant acted with a premeditated and deliberated purpose to
cause the death of Lisa Williams.  In short, appellant used a
sawed-off, 12-gauge shotgun loaded with double-00 buckshot in
March; the shots were fired into the trailer at head-level; and the
shots appeared to have been aimed at a certain target as they
followed the victim when she moved from the doorway of her home to
the bedroom.  It was for the jury to determine that this evidence
excluded every other hypothesis consistent with appellant's
innocence, and they could do so on this evidence without
speculating.  The jury was not persuaded by appellant's evidence. 
This was a credibility determination by the jury that we affirm
upon substantial evidence.  Accordingly, we find no merit to
appellant's first argument.
     Appellant's second argument for reversal is a challenge to the
trial court's finding that appellant was fit to proceed to trial. 
Ordinarily, a criminal defendant is presumed to be mentally
competent to stand trial, and the burden of proving incompetence is
on that defendant.  Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264
(1996).  The test for determining an accused's competency to stand
trial is whether he is aware of the nature of the proceedings
against him and is capable of cooperating effectively with his
attorney in the preparation of his defense.  Ark. Code Ann.  5-2-
302 (Repl. 1993); Mitchell, 323 Ark. 116, 913 S.W.2d 264.  On
appellate review of a finding of fitness to stand trial, we affirm
if there is substantial evidence to support the trial court's
finding.  Id. at 121, 913 S.W.2d  at 266 (quoting Mauppin v. State,
314 Ark. 566, 865 S.W.2d 270 (1993).
     Appellant argues that, because he told the examiner at the
state hospital that he was charged with first-degree murder when he
was actually charged with capital murder, he was not aware of the
nature of the charges against him.  He argues further that he had
a significant history of poor communication abilities, thus he
could not assist in his defense.  Following the filing of
appellant's notice pursuant to Ark. Code Ann.  5-2-304 (Repl.
1993) and motion for evaluation, the trial court entered an order
committing appellant to the state hospital for examination. 
Dr. O. Wendall Hall, a psychiatrist at the state hospital, filed a
report with the court finding that appellant appeared to be aware
of the nature of the charges and the proceedings taken against him
and was capable of cooperating effectively with an attorney in the
preparation of his defense.  
     The trial court later held a competency hearing and heard
testimony from Drew Camp, a licensed psychological examiner in the
North Little Rock School District; Dr. Albert Kittrell, a fourth-
year psychiatry resident at the state hospital; and Dr. Susan Doi,
a clinical psychologist at the state hospital.  Collectively, their
testimonies established that appellant had an IQ of 72, which is on
the borderline of mild mental retardation; that various tests of
language skills, motor skills, and behavior skills indicated
appellant functioned at an equivalent age of ten to twelve years;
that while in the eleventh grade he functioned at the third-grade
level in all areas except math, in which he functioned at the
fifth-grade level; that appellant had no problems functioning in
the social environment at the state hospital; that appellant was
fairly poor in both judgment and insight; that appellant showed no
evidence of major mental illness or psychotic behavior; and that
appellant was aware of the charges and could assist in his own
defense.
     The law does not require an accused to identify with
specificity the charges filed against him.  Rather, section 5-2-302
requires that an accused have the capacity to "understand the
proceedings against him."  Both doctors from the state hospital
testified that appellant knew he had been charged with murder. 
They both concluded that appellant was aware of the nature of the
charges against him.  In addition, both doctors testified that he
cooperated in their examinations and with others at the state
hospital.  Again, both doctors stated appellant could assist in his
defense.  Their testimonies constitute substantial evidence to
support the trial court's conclusion that appellant was competent
to stand trial.  
     Appellant's third argument for reversal is that the trial
court erred in refusing to suppress appellant's pretrial statement,
wherein he admitted to firing the shotgun at the Williamses
although he did not intend to kill anyone.  Appellant contends his
waiver of Miranda rights was not voluntary, knowing, or intelligent
because the interrogating officer made a false promise to send
appellant home if appellant would admit to being the shooter.  He
argues that persons of ordinary intelligence would not be induced
to confess on such an obviously false promise and that his low
intelligence and lack of education rendered him extremely
vulnerable.
     When the voluntariness of a confession is in issue, we make an
independent determination of voluntariness based upon the totality
of the circumstances surrounding the confession, and we do not
reverse the trial court's finding of voluntariness unless it is
clearly against the preponderance of the evidence.  Misskelley v.
State, 323 Ark. 449, 915 S.W.2d 702 (1996).  Some of the factors we
consider are the age, education, and intelligence of the accused;
the advice or lack thereof on constitutional rights; the length of
the detention; the repeated or prolonged nature of the questioning;
and the use of physical punishment.  Id.  A custodial confession is
presumed involuntary and the burden is on the state to show the
confession was voluntarily made.  Id.
     A confession obtained through a false promise of reward or
leniency is invalid.  Id.  However, the only evidence that
appellant's custodial statement was obtained through a false
promise of reward comes from appellant's testimony at the
suppression hearing.  In his statement, however, he clearly stated
that the detective advised him of his Miranda rights in a manner
that he understood, that no one had made any threats or promises in
exchange for the statement, and that he was giving the statement
"of [his] own free will."  Thus, this is a credibility issue that
the trial court assessed in favor of the state.  See Misskelley,
323 Ark. 449, 915 S.W.2d 702.  
     While the factors of age and mental capacity are factors to
consider in determining voluntariness of a confession, those
factors alone are not sufficient to require suppression. 
Misskelley, 323 Ark. 449, 915 S.W.2d 702.  In addition, a low score
on an intelligence quotient test does not render an accused
incapable of voluntarily giving a confession.  Id.  The facts of
Misskelley are almost identical to the facts of this case. 
Misskelley was aged seventeen when he was interrogated, had an IQ
of 72, and read at the third-grade level.  In the present case,
appellant was aged eighteen when he was interrogated, had an IQ of
72, and read at the third-grade level.  We found Misskelley's
confession to be voluntary.  Likewise, we find appellant's to be
voluntary.  On this evidence, we cannot say the trial court's
finding of voluntariness was clearly against the preponderance of
the evidence.
     In accordance with Rule 4-3(h), the record has been reviewed
for adverse rulings objected to by appellant but not argued on
appeal, and no such errors were found.  For the aforementioned
reasons, the judgment of conviction is affirmed.
     DUDLEY, J., not participating.