Martinous Olyn Moore v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR07-804
MARTINOUS OLYN MOORE,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
Opinion Delivered March
6, 2008
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR-2006-2376,
HON. CHRISTOPHER CHARLES
PIAZZA, JUDGE,
AFFIRMED.
ANNABELLE CLINTON IMBER, Associate Justice
Appellant Martinous Moore was convicted by a Pulaski County jury of capital murder
and aggravated robbery, for which he received a sentence of life imprisonment without the
possibility of parole plus 480 months, to run concurrently. He now appeals, alleging three
points of error: 1) the circuit court erred in denying his motion for directed verdict; 2) the
circuit court erred in denying his motion for mistrial; 3) the circuit court erred in allowing
the hearsay testimony of an alleged co-conspirator. Because Moore received a sentence of life
imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (2007). We find no
error and affirm.
I. Sufficiency of the Evidence
In support of his position that the circuit court erred in denying his directed-verdict
motion, Moore asserts that the evidence was insufficient to support the aggravated-robbery
conviction. Aggravated robbery was both a separate charge and the felony underlying the
State’s felony-murder theory. Moore points out that there was no evidence to indicate that
he verbally assented to the robbery plan allegedly hatched by a co-conspirator, and that there
was no evidence of a theft or attempted theft. We believe these arguments are meritless and
conclude that the evidence was more than sufficient to support both convictions.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence.
Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). This court has repeatedly held that in
reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most
favorable to the State and consider only the evidence that supports the verdict. Id. We affirm
a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which
is of sufficient force and character that it will, with reasonable certainty, compel a conclusion
one way or the other, without resorting to speculation or conjecture. Id.
Furthermore, circumstantial evidence may provide a basis to support a conviction, but
it must be consistent with the defendant’s guilt and inconsistent with any other reasonable
conclusion. Id. Whether the evidence excludes every other hypothesis is left to the jury to
decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The
trier of fact is free to believe all or part of any witness’s testimony and may resolve questions
of conflicting testimony and inconsistent evidence. Id.
The testimony at trial revealed that Moore and his co-defendants, Marques Tavron and
Gavino Mazurek, agreed on a plan to rob Brady Alexander, whom Tavron and Mazurek
knew because they attended the same high school. Casey Harvey, the girlfriend of Tavron’s
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brother, testified that she had been living with Moore and Tavron in various motels and in
Moore’s car during the weeks leading up to the robbery. The car needed a new starter,
which they could not afford. Mazurek knew that Alexander had made money by selling
drugs. In addition, Patrick Peters testified that his friend Alexander was saving money to buy
new rims for his vehicle and that the two of them together had accumulated three to four
thousand dollars. According to Peters, Mazurek came to Alexander’s home a few days before
the robbery and observed Alexander and Peters counting the money. Harvey testified that
she witnessed Mazurek suggest to Moore and Tavron that they rob Alexander by setting up
a drug transaction, whereby they would lure him to a predetermined location, drive to an
ATM, and force him to withdraw money for them.
On the night of April 19, 2006, Alexander and Peters drove in Alexander’s vehicle to
the Waffle House restaurant on Scott Hamilton Road. Peters testified that they planned to
meet Mazurek there and buy marijuana from him. Cellular phone records admitted into
evidence showed that Alexander and Mazurek exchanged several calls during the evening.
Peters and Harvey both testified that they overheard these calls, in which Mazurek told
Alexander where to meet him. The records indicated that Mazurek was in the vicinity of
downtown Little Rock when some of the calls were made, despite the fact that he told
Alexander that he was in the Waffle House restroom. While Alexander and Peters waited in
the parking lot for Mazurek to emerge, a person later identified as Moore approached the
vehicle. When Moore said that he was “Gavino’s boy,” Alexander permitted him to enter
the vehicle.
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Soon after, Peters exited the vehicle and was standing in the parking lot when he was
approached by Tavron, whom he knew from school. Tavron told Peters that Alexander was
about to get “hit” and showed him a handgun tucked into his waistband. Peters immediately
heard a gun fire from inside Alexander’s vehicle, and he heard Alexander scream. The vehicle
lit up with the blast, and Peters saw Moore leaning into the front seat. Harvey testified that
she heard the gunshot from a room at the nearby Red Roof Inn, where she, Moore, and
Tavron had rented a room for the night. She ran to the window, which looked out over the
Waffle House parking lot, and saw Alexander’s vehicle speeding away. Neither Moore nor
Tavron were in the parking lot.
When Alexander’s parents and the police were informed of the shooting, they drove
to the Waffle House, where they could find neither Alexander nor his vehicle. At 10:27
P.M., a call came into Mrs. Alexander’s cellular phone from a private number, later
determined to be Tavron’s. Mr. Alexander answered the call and heard his son on the line.
Brady Alexander informed his father that he was driving around and that he could not return
to the Waffle House because he was running out of gas. He also spoke with Officer Regina
Goss of the Little Rock Police Department and told her that he was fine. However, Officer
Goss testified that he sounded hesitant. This phone call was the last communication with
Alexander. Phone records showed that a 911 call was placed from his telephone number
between 10:00 and 10:30 P.M.
The call was picked up by the cellular tower near
Wrightsville.
The following day, Alexander’s body was found in the vicinity of Wrightsville where
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his vehicle had been abandoned. Dr. Daniel Konzelmann, an associate medical examiner at
the Arkansas State Crime Laboratory, testified that the cause of death was gunshot wounds to
the neck and right thigh. Preston Williams, Moore’s cousin, testified that sometime after
midnight on April 20, he picked up Moore and Tavron at the Bada-Bing Club in
Wrightsville. The club was located 2.4 miles from the site where Alexander’s vehicle was
found. Williams took the two to the Motel 6 on Scott Hamilton Road, near the Waffle
House and the Red Roof Inn. According to Harvey’s testimony, Moore and Tavron
returned to the rented room at the Red Roof Inn several hours from the time they had left,
and they appeared to have changed into someone else’s clothes.
The evidence was further corroborated by David Sharp, who testified that Moore had
confessed the crime to him while the two shared a cell at the Pulaski County jail. According
to Sharp, Moore stated that he and Tavron forced Alexander out of the vehicle and into a
sleeping bag on the ground, where Moore placed a pillow between Alexander’s neck and the
gun before firing. Alexander’s body was found in the sleeping bag, with the pillow covering
his face. Dr. Konzelmann testified that, during the autopsy, he found some small cloth
fragments within the wound path, which suggested to him that there had been some type of
cloth between the muzzle and the skin at the time of discharge. He also stated that the
wound in Alexander’s neck was surrounded by a square-shaped bruise consistent with the
imprint of the gun’s muzzle, indicating that Alexander was shot at very close range.
A robbery is committed if a person employs or threatens to immediately employ
physical force upon another person, with the purpose of committing theft or resisting
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apprehension immediately after committing theft. Ark. Code Ann. § 5-12-102(a) (Repl.
2006). A robbery becomes aggravated if the person is armed with a deadly weapon, represents
by word or conduct that he or she is armed with a deadly weapon, or inflicts or attempts to
inflict death or serious physical injury upon another person. Ark. Code Ann. § 5-12-103
(Repl. 2006). Substantial evidence indicates that Moore was armed with a deadly weapon for
the purpose of committing theft. A person commits theft if he or she knowingly takes or
exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the
property of another, with the purpose of depriving the owner of the property, or obtains the
property of another by deception or threat, with the purpose of depriving the owner of the
property. Ark. Code Ann. § 5-36-103 (Repl. 2006 & Supp. 2007). As indicated by the
testimony of Casey Harvey, Moore was part of a plan to take Alexander’s money. This
evidence is corroborated by the testimony of David Sharp, who stated that Moore described
the robbery plan in his confession.
We reject Moore’s argument that the aggravated robbery was not established because
there was no evidence of a theft. A conviction of aggravated robbery does not require that
a theft actually occur; it only requires that the perpetrator act with the purpose of committing
theft or resisting apprehension immediately after committing theft. See Ark. Code Ann. § 512-102. We have stated that the focus of aggravated robbery is on the physical force used or
threatened, and if the defendant has the intent to commit a theft, no actual transfer of
property needs to take place for the offense to be complete. Winston v. State, 368 Ark. 105,
___ S.W.3d ___ (2006). Likewise, we can find no merit in Moore’s contention that the
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evidence did not show his assent to the robbery plan. Moore and Tavron both clearly
followed through with the plan, whether or not they verbally acknowledged their agreement
at the time the plan was conceived.
A person commits capital murder if, acting alone or with one or more others, he or
she commits or attempts to commit aggravated robbery and, in the course of and in
furtherance of the aggravated robbery or in immediate flight therefrom, the person or an
accomplice causes the death of any person under circumstances manifesting extreme
indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(1) (Repl. 2006 &
Supp. 2007). The evidence supports the notion that Alexander’s death was caused in the
course of the aggravated robbery. Moreover, the manner of his death indicates that it was
caused under circumstances manifesting extreme indifference to the value of human life. See
Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000) (holding this requirement satisfied where
victim died from a large-caliber gunshot wound to the chest and gun was fired from close
range). In addition, David Sharp’s account of Moore’s confession indicated that Alexander
was crying and pleading for his life before he was killed. We conclude that substantial
evidence supports the capital-murder and aggravated-robbery convictions; thus, the circuit
court did not err in denying Moore’s motion for directed verdict.
II. Motion for Mistrial
For his next point on appeal, Moore asserts that the circuit court erred in denying his
motion for mistrial, which was requested after the court ejected an unruly spectator from the
courtroom. According to Moore, this action resulted in a perception that the court endorsed
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the testimony of Casey Harvey, the witness on the stand at the time. Harvey testified on
behalf of the State. For these reasons, Moore argues that he was prejudiced to the extent that
no curative instruction would ameliorate the prejudice.
However, we decline to address this argument, as it was not properly preserved for our
review. The record reveals that Moore failed to argue below that the court’s action caused
the jury to believe that the court endorsed the testimony of the State’s witness. Instead,
Moore’s counsel made the motion for mistrial on the basis that the ejected spectator was
related to Moore. We have stated that arguments not raised at trial will not be addressed for
the first time on appeal. Tryon v. State, 371 Ark. 25, ___ S.W.3d ___ (2007). Parties cannot
change the grounds for an objection on appeal and are bound by the scope and nature of the
objections and arguments presented at trial. Id.
III. Hearsay Testimony of Alleged Co-Conspirator
Finally, Moore alleges that the circuit court erred in allowing Casey Harvey to testify
as to Mazurek’s statements to Moore and Tavron regarding the robbery plan. Moore argues
that the statements were inadmissible hearsay not covered by the exception for statements of
a co-conspirator made in furtherance of the conspiracy, because the existence of a conspiracy
was not established. This court has held that trial courts are afforded wide discretion in
evidentiary rulings. Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006). We will not reverse
a trial court’s ruling on the admission of evidence absent an abuse of discretion, and, likewise,
we will not reverse absent a showing of prejudice. Id.
Our evidence rules indicate that a statement is not hearsay if it is offered against a party
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and is a statement by a co-conspirator of a party made during the course and in furtherance
of the conspiracy. Ark. R. Evid. 801(d)(2)(v) (2007). Pursuant to this rule, Harvey’s
recitation of Mazurek’s statements explaining the robbery plan would not be hearsay if
Mazurek was a co-conspirator of Moore and if Mazurek made these statements during the
course and in furtherance of the conspiracy. The fact that a conspiracy was not charged in
Moore’s case is irrelevant. We have held that there need not be a conspiracy count in the
indictment to make the provisions of this rule applicable. Smithey v. State, 269 Ark. 538, 602
S.W.2d 676 (1980). Rather, the alleged co-conspirator must be connected to the conspiracy
by evidence independent of the statement at issue. Henderson v. State, 329 Ark. 526, 953
S.W.2d 26 (1997); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993).
We hold that overwhelming evidence supports the conclusion that Moore conspired
with Mazurek and Tavron. While Moore and Tavron may not have voiced their agreement
with Mazurek’s plan at the time the plan was formulated, their actions showed their mutual
agreement. They carried out the steps of Mazurek’s plan exactly as Mazurek had suggested.
Communication among the three suggests that they were operating as a group of conspirators.
The cellular phone records admitted into evidence showed several calls among them on the
night of the robbery and murder. Harvey testified to one particular call she overheard
between Moore and Mazurek, wherein Moore asked if Alexander was in the Waffle House
parking lot as he looked out the motel-room window. Harvey stated, “Is he out there, is that
his car is what I heard M.J. [Moore] say.” Moore left the motel room immediately thereafter.
Additionally, Sharp testified that Moore told him that “Gavino had set, was the middle man
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to set it up.” Thus, independent evidence shows the existence of a conspiracy. The
statements made by Mazurek to which Harvey testified were clearly offered against Moore
and were made during the course and in furtherance of that conspiracy. Therefore, the circuit
court did not err in admitting these statements.
IV. Rule 4-3(h) Review
Pursuant to Ark. Sup. Ct. R. 4-3(h), the record in this case has been reviewed for all
objections, motions, and requests made by either party, which were decided adversely to
Moore, and no prejudicial error has been found.
Affirmed.
BROWN, J., not participating.
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