Lloyd v. State

Kevin Allen LLOYD v. STATE of Arkansas

CR 97-154                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1998


1.   Evidence -- directed-verdict motion treated as challenge to
     sufficiency of -- guidelines for review. -- Motions for
     directed verdict are treated as challenges to the sufficiency
     of the evidence; when a defendant challenges the sufficiency
     of the evidence convicting him, the evidence is viewed in the
     light most favorable to the state; evidence is sufficient to
     support a conviction if the trier of fact can reach a
     conclusion without having to resort to speculation or
     conjecture; substantial evidence is that which is forceful
     enough to compel reasonable minds to reach a conclusion one
     way or the other; only evidence supporting the verdict will be
     considered. 

2.   Criminal law -- capital-murder conviction -- premeditation and
     deliberation may be inferred. -- Premeditation and
     deliberation may be inferred from 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.   Criminal law -- accomplice defined -- burden of proof. -- The
     appellant bears the burden of proving that a witness is an
     accomplice whose testimony must be corroborated; an accomplice
     is one who, with the purpose of promoting or facilitating the
     commission of an offense, either solicits, advises,
     encourages, or coerces the other person in planning or
     committing it, or fails to make a proper effort to prevent the
     commission of the offense, provided he has a legal duty to
     prevent it. 

4.   Criminal law -- appellant's claim concerning accomplice not
     addressed -- issue not preserved for review. --  Appellant's
     contention that the evidence was insufficient to corroborate
     the witness's testimony was not addressed because the witness
     was never found to be an accomplice whose testimony had to be
     corroborated; appellant failed to request that accomplice
     instructions, including the instruction on corroboration, be
     submitted to the jury for consideration; appellant did not
     preserve this issue for consideration.

5.   Evidence -- capital-murder conviction supported by substantial
     evidence -- conviction affirmed. -- Viewing the evidence in
     the light most favorable to the State, the supreme court found
     that there was substantial evidence that appellant acted with
     premeditation and deliberation in causing his father's death;
     when considering this evidence, the jury could have concluded,
     without resorting to speculation or conjecture, that
     appellant's killing of his father was a premeditated and
     deliberate act; the appellant's conviction for capital murder
     was affirmed.


     Appeal from Pope Circuit Court; John S. Patterson, Judge; affirmed.
     Dunham & Faught, P.A., by:  James Dunham, for appellant.
     Winston Bryant, Att'y Gen., by:  C.Joseph Cordi, Jr., Asst. Att'y Gen., for appellee.

     W.H."Dub" Arnold, Chief Justice.
     The appellant, Kevin Allen Lloyd, was convicted of the capital murder of his father, Ken
Lloyd, and was sentenced to life imprisonment without parole.  His sole argument on appeal is
that there was insufficient evidence of premeditation and deliberation to support his conviction. 
We disagree, and affirm appellantþs conviction and sentence.  
     On October 19, 1995, the body of Ken Lloyd was found in his home on Crow Mountain
in Pope County.  He had been shot three times with a sawed-off twelve-gauge pump shotgun.
Sergeant Aaron Duvall of the Pope County Sheriffþs Office located the murder weapon on the
living room floor of the residence.  He determined that two different types of shells had been 
fired -- double-00  buckshot and number-six game-load.  He further explained that, after the
shotgun was fired, the shooter had to eject the empty casing by bringing the pump down, then
back up to pump another round into the chamber to fire another shot.  According to Sergeant
Duvall, a person had to make a conscious effort to pump the shotgun and fire it.  
     After learning that appellant lived at the victimþs residence, Pope County Sheriff Jay
Winters and Arkansas State Trooper Jerry Roberts began searching for him and eventually
developed him as a suspect.  They found appellant in a large metal drainage tile in an area north
of Interstate 40.  After being advised of his Miranda rights, appellant admitted that he had shot
his father three times because he was mad at him.  In a later taped statement, appellant stated that
his father was asleep when he shot him the first time, and that he shot him two more times after
he got up.  
     Appellantþs sister, Christy Lloyd, testified that appellant had talked about killing their
father for six months to a year, and that his remarks intensified prior to the victimþs death. 
Specifically, appellant told Christy that he hated their father, wished he were dead, and that he
was going to kill him.  Prior to the murder, the appellant told Christy that he had obtained a
shotgun from a friend.  He took the shotgun to the shed, sawed the barrel off, and showed the
gun to her.  Appellant, who did not wear his glasses in spite of his poor eyesight, explained to
Christy that he had sawed the barrel off because he could point it and þhit stuff easier,þ as a
sawed-off shotgun was easier to aim because you could point and shoot it without seeing the
target.  According to Christy, appellant demonstrated this for her by shooting some spray-paint
cans.
     Tim Ramsden, a friend of appellantþs, testified that, at 12:50 p.m. on October 18, 1995,
the day of the murder, appellant telephoned his residence and asked if his jacket was in his
(Ramsdenþs) room.  According to Ramsden, who did not drive, appellant wanted the shells that
were in the jacket.  Appellant asked Ramsden to have another friend, Shiloh McClure, who had
a car, to bring the jacket to appellantþs house. 
     Dennis Brown, another friend of appellantþs, was also present at Ramsdenþs house when
appellant made the telephone inquiry about his jacket.  Brown rode with McClure to appellantþs
house.  Upon arrival, appellant approached the car and retrieved his jacket from Brown. 
According to Brown, appellant þlooked and acted demonicþ and had an þevil glare.þ  Appellant
took three shotgun shells out of his jacket and stated that he did not need the rest of them.  He
then walked away from the car.  Brown and McClure had been waiting in the car for
approximately twenty minutes when Brown heard three shotgun blasts that appeared to come
from the house.  According to Brown, the first and second shots were one second apart, but the
third blast occurred some ten to fifteen seconds later.  Appellant then ran to the car and climbed
inside.  According to Brown, appellant stated that he felt þevilþ and felt good about killing his
father. Appellant described how he was þrelievedþ and felt his life was þcomplete and that it was
over.þ McClure drove for approximately ten to fifteen minutes before dropping appellant off.  
     Dr. Stephen A. Erickson, Associate Medical Examiner of the State Crime Lab, examined
the victimþs body and determined that the death was the result of a homicide.  One of the three
shotgun wounds was located around the upper left leg, lower left abdomen, left groin, and
genitalia.  A second wound was located on the victimþs right leg.  Buckshot pellets created
separate entrance wounds into the leg that broke the ends of the femur, tibia, and fibula bones. 
According to Dr. Erickson, this wound caused massive damage to the victimþs leg, destroying all
the vasculature.  The third and final wound was located on the victimþs right forearm and created
an þexplosive-type injuryþ that destroyed the muscles, bones, arteries, and nerves in the arm.  It
was Dr. Ericksonþs testimony that these multiple gunshot wounds caused bleeding, which led to
shock, vascular collapse, and, ultimately, the victimþs death.
     At the close of the Stateþs case in chief, appellant moved for directed verdict on the
ground that the State had failed to show sufficient evidence of premeditation and deliberation.
The trial court denied the motion.  Appellant rested without presenting any evidence.  After
hearing all the evidence, the jury was instructed on capital murder, as well as the lesser-included
offenses of first-degree murder and second-degree murder. 
     We have recently reviewed the guidelines for reviewing challenges to the sufficiency of
the evidence in Green v. State, 330 Ark. 458, 466-7, ___ S.W.2d ___ (1997); quoting McGehee
v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997):
          Motions for directed verdict are treated as challenges to the sufficiency of the
     evidence.  Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark.
     739, 894 S.W.2d 597 (1995).  When a defendant challenges the sufficiency of the
     evidence convicting him, the evidence is viewed in the light most favorable to the state. 
     Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992).  Evidence is sufficient to
     support a conviction if the trier of fact can reach a conclusion without having to resort
     to speculation or conjecture.  Id.  Substantial evidence is that which is forceful enough
     to compel reasonable minds to reach a conclusion one way or the other.  Id.  Only
     evidence supporting the verdict will be considered.  Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). 

See also Stewart v. State, 331 Ark. ___, ___ S.W.2d ___ (February 12,1998).  Specifically,
appellant maintains that his capital-murder conviction should be reversed because the State failed
to prove premeditation and deliberation.  See Ark. Code Ann. 5-10-101(a)(4) (Repl. 1997). 
þPremeditation and deliberation may be inferred from 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.þ  Green, 330 Ark. at 467; citing Key v. State, 325 Ark.
73, 923 S.W.2d 865 (1996); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied,
117 S. Ct. 436 (1996).
     On appeal, appellant argues that the only evidence of premeditation and deliberation came
from the testimony of Dennis Brown, who appellant claims was an accomplice.  Thus, according
to the appellant, Brownþs testimony regarding premeditation and deliberation must have been
corroborated.  During cross-examination of Brown, appellant requested at a side-bar conference
that the trial court declare the witness an accomplice as a matter of law.  The trial court refused
to do so, stating that whether Brown was an accomplice was a mixed question of law and fact. 
The trial court did indicate, however, that it could foresee an accomplice instruction being
included at the end of the trial.  However, no accomplice instructions were requested or submitted
to the jury.  Thus, Brown was never found to be an accomplice.
     Appellant bears the burden of proving that a witness is an accomplice whose testimony
must be corroborated.  Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996).  An accomplice is one
who, with the purpose of promoting or facilitating the commission of an offense, either solicits,
advises, encourages, or coerces the other person in planning or committing it, or fails to make
a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent
it.  Id.   Appellant contends that the evidence was insufficient to corroborate Brownþs testimony. 
Because Brown was never found to be an accomplice whose testimony must be corroborated, we
do not address this argument.  See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). 
Appellant failed to request that accomplice instructions, including the instruction on
corroboration, be submitted to the jury for consideration.  Thus, appellant has not preserved this
issue for our consideration.  Id.
     Viewing the evidence in this case in the light most favorable to the State, there was
substantial evidence that appellant acted with premeditation and deliberation in causing his
fatherþs death.  Appellant shot the victim three times with a sawed-off twelve-gauge shotgun. 
He had to deliberately expel a spent shell and pump another round into the chamber between
shots.  At least one of the victimþs wounds was inflicted with buckshot.  Dennis Brown testified
that approximately ten to fifteen seconds elapsed between the second and third shots.  Appellantþs
sister testified that appellant had been talking about killing their father for months.  According
to Christy Lloyd, appellant sawed off the barrel of the shotgun in order to improve his chances
of hitting his target, and practiced shooting the shotgun at cans.  Shortly before the murder,
appellant telephoned his friend Tim Ramsden for the purpose of retrieving shotgun shells that
were in a jacket at Ramsdenþs residence.  Upon receiving the shells, appellant took only three
shells, stating that he did not need the rest.  After the shooting, appellant made statements that
he felt both þgoodþ and þrelievedþ about the killing.  Finally, appellant confessed to shooting his
father because he was mad at him.  When considering this evidence, the jury could have
concluded, without resorting to speculation or conjecture, that appellantþs killing of his father was
a premeditated and deliberate act.  
     The record has been examined under Ark. Sup. Ct. R. 4-3(h) for reversible error, and none
has been found.
     Affirmed.