Lawshea v. State
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Cite as 2009 Ark. 600
SUPREME COURT OF ARKANSAS
No.
CR09-629
Opinion Delivered
KENNETH LEE LAWSHEA,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
December 3, 2009
APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT,
NO. CR-2007-351,
HON. RALPH WILSON, JR., JUDGE,
AFFIRMED.
JIM GUNTER, Associate Justice
Appellant Kenneth Lawshea was convicted as an accomplice in the murder of Shirley
Barnett-Lambert, who was stabbed to death in her home on July 14, 2007. Appellant now
appeals his conviction, arguing that the State failed to prove he acted with premeditation and
deliberation. Because this is a criminal appeal in which life imprisonment has been imposed,
this court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We affirm appellant’s
conviction.
In a felony information filed November 21, 2007, appellant was charged with capital
murder in the death of Shirley Barnett-Lambert. Appellant waived his right to a jury trial, and
on February 18 and 19, 2009, a bench trial was held. The following pertinent testimony was
presented at trial. David Flora, head of the Criminal Investigation Division of the Blytheville
Police Department, testified that, in July 2007, his caseload consisted of mostly drug cases and
Cite as 2009 Ark. 600
that Shirley Lambert was one of his confidential informants. He testified that she was a key
witness in a case against Joseph Sherman (a.k.a. “Handy”), that she was scheduled to testify
on July 23, 2007, and that she was murdered on July 14, 2007.
Billy Lambert, the victim’s husband, testified that he and Lambert had been married
for two years. He testified that he had been in prison before and that he knew appellant from
prison. He also testified that he was unaware that appellant and Lambert had sometimes used
drugs together.
Bobby Trump, the current Gosnell Police Department Commissioner, was a detective
for the Blytheville Police Department at the time of the murder. He testified that he was one
of the lead detectives on the case. Trump testified that, at the crime scene, there was blood
splatter on the side of the house next to the carport door; a yellow shirt with bloodstains on
it laying on the kitchen floor, and blood smears on the bedroom door. The victim was found
laying on the floor in the bedroom. Trump testified that the blood splatter on the wall, as well
as the blood on the yellow shirt, matched the blood of Clarence Kelly.1 The yellow shirt was
identified as belonging to Billy Lambert, who said the shirt had been hanging on a clothes
rack in the bedroom. The blood on the bedroom door was identified as a mixture of the
victim’s blood and appellant’s blood. Trump testified that the victim had a black eye and had
received some type of blunt force injury. The victim also had numerous slash marks and stab
wounds around her neck area, wounds on her arms and hands, and several deep lacerations
Clarence Kelly was appellant’s accomplice who, previous to this trial, pled guilty to firstdegree murder and was sentenced to fifty-five years’ imprisonment.
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to her face.
Trump also testified that the police had received a couple of anonymous tips stating
that two men were seen leaving the victim’s house approximately thirty minutes before the
police arrived, that the men got into a red car, and that one of the men was believed to be
appellant. Trump testified that on July 20, 2007, appellant was picked up on a warrant issued
for failure to make payments and was questioned about the murder. Trump testified that,
when he approached the holding cell, he noticed a large band-aid over appellant’s hand.
Appellant told Trump that he had cut his hand on a beer bottle. The detectives photographed
the cut and gave appellant a new band-aid. The detectives also fingerprinted appellant and did
palm prints, and in the process got ink on the band-aid, so appellant was given a second clean
band-aid. Trump testified that appellant denied any involvement in the murder. Trump stated
that after the interview was over, he sent the two used band-aids to the crime lab, and the
DNA from the band-aids matched the DNA found on the bedroom door.
Trump testified that, after receiving this positive DNA match, he submitted an affidavit
for an arrest warrant. Detectives located appellant in Cleveland, Ohio, where he was taken
into custody by local authorities. Trump testified that he went to Cleveland and obtained an
oral DNA swab from appellant, which was also a positive match to the DNA found on the
bedroom door. Trump testified that he transported appellant back to Blytheville. Trump also
clarified for the court that the murder weapon had not been retrieved.
Steve Caudle was another detective for the Blytheville Police Department who
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participated in the investigation. He testified that he first came in contact with appellant
during the traffic stop that occurred on July 20, 2007, and that at that time, appellant denied
any knowledge of the murder. Caudle next came in contact with appellant on September 27,
2007, when he went to Cleveland, Ohio to arrest appellant. Caudle testified that, at first,
appellant again denied being at the murder scene, but, after being confronted with the DNA
evidence, appellant later spoke to him about the murder in Cleveland and on the way back
to Arkansas. Caudle testified that a taped statement was taken on September 28, 2007, after
appellant waived his rights. The taped statement was then played for the court.
In his statement, appellant explained that he had been approached by his girlfriend’s
brother, Clarence Kelly, about making some “quick easy money” by murdering Shirley
Barnett (Lambert), for which they would be paid $7500. Kelly told appellant that Handy
(Joseph Sherman) and Willie Ivory had put the hit on Shirley Barnett. Appellant told Kelly
that he wasn’t interested, but Kelly continued to ask him about it several more times. One
morning, Kelly came to his house and asked if he had any “stems” to smoke dope with and
suggested they go get one from Lambert.2 Appellant agreed, and he, Kelly, Angela (appellant’s
girlfriend and Kelly’s sister), and another man called “Shorty Gimp” went to Lambert’s house.
They drove to Lambert’s house in a red, four-door Malibu or Impala. Appellant went into
Lambert’s house alone, but once inside, Kelly also entered the house behind him. Lambert
went to the back bedroom to get the stem, and Kelly followed her. After a few minutes,
A “stem” is a glass pipe used to smoke drugs, usually crack cocaine.
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appellant heard a “clump” sound and went to see what was going on. He entered the
bedroom and saw Kelly on the floor, sitting on Lambert and stabbing her with a knife.
Appellant said he attempted to stop Kelly, but Kelly stabbed him, too. Appellant stated that
he then ran out of the house because he didn’t want anything to do with what was
happening.
Appellant also stated to Caudle that, after the murder, Kelly came to his house and
gave him $200 as hush money. He also stated that a few days after he was questioned by the
police on July 20, he was beaten up by several men, who told him to keep his mouth closed.
He said the men then took him to a bus station in Sikeston, Missouri and gave him another
$200. He said the men were driving the same red car, which he identified as belonging to
Kelly’s wife.
Appellant also explained in his statement that he had been having an affair with
Lambert since April and that Kelly knew he was seeing her. He stated that Kelly had used him
to get to Lambert, because she was not the type of person to just let anyone into her house.
He also stated that he had gone with Kelly to see Willie Ivory and Handy a couple of times.
He said he saw Willie give Kelly balls of dope, and he saw Handy give Kelly some money.
He said he did not know how much money Kelly received from Handy or Willie.
Dr. Daniel Konzelmann, a medical examiner for the State, testified that the victim’s
cause of death was stab and cutting wounds with blunt force injuries. Dr. Konzelmann stated
it was a homicide, and the appearance of the body indicated that there was likely a struggle.
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He testified that the victim had approximately forty-seven stab wounds. On crossexamination, he testified that in similar situations, there have been instances where the
perpetrator injured him or herself in the attack, and depending on how the knife was held,
injuries may occur on the palm of the hand or on the inside of the fingers. Regarding the
picture of appellant’s wound on his hand, Dr. Konzelmann testified that if the picture was
taken five or six days after the injury was received, it would be hard to tell if it was caused by
a knife, because the amount of healing makes it hard to tell what the original injury was. He
testified it was not a typical stab wound because it was not deep.
After the State rested, appellant moved for a dismissal, arguing that there was “no
evidence of a premeditated, deliberate murder on behalf of the Defendant.”3 The State argued
that, based on appellant’s statement alone, there was proof of premeditation, because appellant
stated he had been approached by Kelly several times about killing Shirley Barnett, and that
appellant had brought Kelly over to the victim’s house the day of the murder. The motion
was denied.
Appellant then testified and explained that he knew Kelly through Kelly’s sister,
Angela, who he had known for about twenty-five years. He testified that, in January 2007,
he had recently moved back to Arkansas from Ohio to help Angela take care of her children.
He stated that he saw Kelly and that Kelly told him he “knew a lick” that would pay about
While appellant actually characterized his motion as a motion for directed verdict, a
challenge to the sufficiency of the evidence in a bench trial is properly termed a motion to
dismiss. See Ark. R. Crim. P. 33.1(b) (2009).
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$7500, that “it would take two people to do her,” and that it “would have to be with
somebody he could trust.” Appellant said he thought Kelly was referring to a robbery, but
after he was told it was a hit on Lambert, he told Kelly he “didn’t do anything like that.”
Appellant testified that Kelly asked him about the hit again in February, and he again
said he was not interested. Appellant said he began using drugs, and his drug addiction got
“real bad.” He testified that, around the end of March, he was walking late one night and
saw Lambert drive by. She stopped and asked appellant if he had any cocaine, which he did,
and the two of them got high. Their relationship eventually became intimate, and appellant
would visit Lambert in her home when her husband was at work.
Appellant testified that, at the end of May, Lambert told him that Clarence Kelly had
“propositioned” her and wanted to pay her $200 for sex. At that time, Lambert told Kelly that
she and appellant were “messing around.” Also at that time, appellant was living with Angela,
his girlfriend, who lived right around the corner from Lambert. Also around that time, Kelly
again asked appellant if he had “been thinking about” the hit on Lambert, and appellant again
told him he wasn’t interested.
Appellant did not see Kelly again until the Fourth of July at a family gathering. Then,
on July 14, Kelly came to appellant and Angela’s home that morning with some crack
cocaine. According to appellant, Kelly told him, “We gonna get high, we gonna make this
money, and we gonna cook this dope.” Angela, appellant, Kelly, and a man called “Shorty”
got in Kelly’s car, and Kelly asked if appellant could go over to Lambert’s house to get some
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“tools,” meaning crack pipes and other tools used to cook dope. Appellant agreed to get some
tools from her, and Angela drove them to Lambert’s house. Appellant approached and entered
the house through the carport door; Kelly then followed behind him a few minutes later.
Appellant said that Kelly was rushing Lambert to get the tools they needed, and Kelly
followed her when she went to the bedroom to get them. Appellant said Kelly closed the
bedroom door. Several minutes passed, and appellant heard a “bump” or “clump” sound. He
testified that he thought Kelly might be taking advantage of Lambert or trying to force himself
on her, so he went into the bedroom, and there he saw Kelly on top of Lambert, stabbing
her. Appellant testified that Kelly kept saying “The bitch got to die,” and appellant yelled at
him, saying “This ain’t right.” Appellant stated that he reached out and Kelly stabbed at him
with the knife. Appellant left the bedroom, left the house, and went back to the car.
Appellant testified that he was hollering about Kelly stabbing “that girl,” and Shorty pulled
out a pistol and told appellant to get in the car.
Appellant testified that after Kelly came back to the car and dropped Angela and
appellant off at home, he began drinking and went to take a shower. When he undressed, he
realized he had been stabbed in the leg. A short time later, Kelly returned and gave appellant
$200, saying “Here’s $200 hush-hush money. They know your son work at Milwaukee tool.”
Appellant stated that after his child was threatened, he felt there was nothing he could do but
go along with what happened.
Appellant testified that when the police stopped him the next week, he initially denied
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having any knowledge of the murder. He testified that they brought him to the police station
and interviewed him in a back room, and at that time, he told them that he knew they
believed he knew something about Lambert’s death and that he was willing to do whatever.
He denied that his fingerprints or blood would be found in Lambert’s house.
Appellant testified that the night after he was interviewed by the police, he was driving
home intoxicated from a club, and he was attacked by several men while stopped at some
train tracks. He stated he was hit with a baseball bat numerous times. He then proceeded
home and decided the best thing to do was to leave town, so he began walking to his
grandmother’s house. The same men came by again, grabbed him, and put him in the car.
After driving for about fifty minutes, the men threw him out of the car, told him if he knew
what was best, he would not come back to Arkansas, and threw onto the ground $200 and
a bus ticket to Cleveland. Appellant went to Cleveland and stayed with a female friend and
his sister for a couple of months, until the Cleveland police came to his sister’s house and
detained him. Appellant testified that he waived extradition back to Arkansas and voluntarily
gave the statement to the police that had been played for the court earlier.
On cross-examination, appellant confirmed that Kelly had asked him numerous times
about the hit on Lambert and admitted that he had never warned her of any possible danger.
Appellant stated that he did not warn her because he “didn’t want to get involved.” Appellant
stated that he had not brought Kelly to Lambert’s house; Kelly had come in the house himself.
Appellant also stated that, at the time, it was not on his mind that Kelly had approached him
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at least three times about killing Lambert. Appellant also stated that he had made a statement
to the police in Cleveland, in which he told them about the threat to his son, but he did not
know where that statement was now.
At the close of the defense’s case, appellant renewed his motion to dismiss, which was
again denied. In denying the motion, the court stated:
[I]t’s my understanding the law is that the accomplice in this case being Kenneth
Lawshea, he’s not the one that has to have the premeditated and deliberate purpose to
cause the death, that the co-defendant or the accomplice in this case who was
Clarence Kelly, had that reckless of purpose. Then, if in fact Mr. Lawshea is an
accomplice and if the other elements are met, ... then he’s equally responsible for the
murder or the homicide of Ms. Lambert.
After taking a recess to deliberate, the court then announced its decision. After reviewing the
relevant law and the evidence presented, the court found that the evidence was consistent
with appellant’s guilt as an accomplice or as a principal. The court specifically found that
appellant’s testimony was self-serving, that much of his testimony on direct examination was
discredited or impeached on cross-examination, and that his testimony and explanations were
“implausible and not believable.” The court found beyond a reasonable doubt that appellant
was guilty of capital murder as an accomplice with Clarence Kelly in the murder of Shirley
Lambert and sentenced appellant to life in prison without parole. This timely appeal followed.
On appeal, appellant challenges the sufficiency of the evidence supporting his
conviction, arguing that the State failed to prove he acted with premeditation and
deliberation. In reviewing a challenge to the sufficiency of the evidence, this court determines
whether the verdict is supported by substantial evidence, direct or circumstantial. Boyd v.
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State, 369 Ark. 259, 253 S.W.3d 456 (2007). Substantial evidence is evidence forceful enough
to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court
views the evidence in the light most favorable to the verdict, and only evidence supporting
the verdict will be considered. Id. On appeal, this court does not weigh the evidence
presented at trial, as that is a matter for the fact-finder; nor does the appellate court assess the
credibility of the witnesses. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). The factfinder is free to believe all or part of a witness’s testimony and may resolve all questions of
conflicting testimony and inconsistent evidence. Rounsaville v. State, 374 Ark. 356, 288
S.W.3d 213 (2008).
Arkansas Code Annotated section 5-10-101(a)(4) (Supp. 2009) provides that a person
commits capital murder if, “[w]ith the premeditated and deliberated purpose of causing the
death of another person, the person causes the death of any person.” In this case, appellant’s
criminal liability is based upon his status as an accomplice. Under accomplice liability, a person
may commit an offense by his own conduct or by that of another person. Ark. Code Ann.
§ 5-2-401 (Repl. 2006). A person is criminally liable for the conduct of another person when
he is the accomplice of another person in the commission of an offense. Ark. Code Ann. §
5-2-402(2) (Repl. 2006). A person is an accomplice when he or she solicits, advises,
encourages, coerces, aids, agrees to aid, or attempts to aid in the commission of an offense.
Ark.Code Ann. § 5-2-403(b)(1-2) (Repl. 2006).
We have said that there is no distinction between principals on the one hand and
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accomplices on the other, insofar as criminal liability is concerned. Jefferson v. State, 359 Ark.
454, 198 S.W.3d 527 (2004). When two people assist one another in the commission of a
crime, each is an accomplice and criminally liable for the conduct of both. Cook v. State, 350
Ark. 398, 86 S.W.3d 916 (2002). One cannot disclaim accomplice liability simply because he
did not personally take part in every act that went to make up the crime as a whole. Id.
However, when causing a particular result is an element of an offense charged under
accomplice liability, the accomplice must act with the culpability required for the commission
of the offense. Ark.Code Ann. § 5-2-403(b). Causing the death of a person, as in murder or
manslaughter, is a particular result. See Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993).
On appeal, appellant asserts that the State did not present substantial evidence that he
acted with premeditation or deliberation, either alone or as an accomplice. Appellant contends
that the strongest evidence presented against him was the testimony of Bobby Trump and
Steve Caudle, who both implicated appellant as an accomplice. However, appellant argues,
it cannot be inferred from the testimony presented at trial that he acted with premeditation
and deliberation or that he encouraged, aided, or assisted anyone in committing any crime
against the victim. There was “no sufficient physical evidence that would give rise to a level
of suspicion” against him, nor was there any direct or circumstantial evidence to indicate that
he had any intent to cause harm to the victim. According to appellant, to assume that he
encouraged Kelly to behave as he did amounts to nothing more than speculation and
conjecture; therefore, the State’s evidence was insufficient, and his conviction should be
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reversed.
However, as stated previously, appellant’s criminal liability in this case is based on his
status as an accomplice, and appellant failed to challenge his status as an accomplice at the trial
court level. Appellant’s directed verdict motion below argued insufficient evidence of the
requisite mens rea for capital murder, namely premeditation and deliberation, and our case
law is well-settled that a party cannot change the grounds for an objection on appeal, but is
bound by the scope and nature of the arguments presented at trial. Eubanks v. State, 2009 Ark.
170, ___ S. W.3d ___ (2009). So any argument on appeal that there was insufficient evidence
of his acting as an accomplice, by encouraging, aiding, or assisting Kelly in the murder, is not
preserved for this court’s review.
As to the evidence of premeditation and deliberation, which the State was required to
prove pursuant to Ark. Code Ann. § 5-2-403(b), the evidence presented at trial showed that
appellant was aware that several individuals desired that Shirley Lambert be killed; that Kelly
approached appellant on at least three occasions about joining him in committing this killing;
that despite his close relationship with the victim, appellant never warned her of any danger;
that on the day of the murder, Kelly announced to appellant they were going to “make this
money”; that appellant rode with Kelly and two other individuals to the victim’s home; that
appellant gained entry to the victim’s home; and that appellant was present in the bedroom
where the victim’s body was found. In addition, appellant fled to Cleveland, Ohio after the
crime, and this court has held that flight from the place where a crime has been committed
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may be considered evidence of guilt. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001).
And, while appellant explained in his own testimony that his presence at the crime scene was
only to retrieve “tools” to do drugs, and he did not know the murder was going to occur, the
circuit court found appellant’s testimony to be self-serving and not credible. As stated
previously, this court does not assess the credibility of the witnesses, as this is within the
province of the fact-finder. Ridling, supra. Accordingly, we find there was substantial evidence
to find that appellant was guilty as an accomplice in the death of Shirley Lambert, and we
therefore affirm appellant’s conviction for capital murder. The record in this case has been
reviewed for reversible error pursuant to Arkansas Supreme Court Rule 4-3(i), and none has
been found.
Affirmed.
IMBER, J., not participating.
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