{ "id": 3034408, "name": "Wallace A. GARDNER v. STATE of Arkansas", "name_abbreviation": "Gardner v. State", "decision_date": "2006-01-05", "docket_number": "CR 05-472", "first_page": "506", "last_page": "516", "citations": [ { "type": "official", "cite": "364 Ark. 506" }, { "type": "parallel", "cite": "221 S.W.3d 339" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "363 Ark. 496", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3556979 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/363/0496-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "232 Ark. 697", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694136 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "702" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/ark/232/0697-01" ] }, { "cite": "326 Ark. 90", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020800 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0090-01" ] }, { "cite": "336 Ark. 67", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51338 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0067-01" ] }, { "cite": "276 Ark. 203", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751554 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0203-01" ] }, { "cite": "346 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111294 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0198-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-89", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-12-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1997, "opinion_index": 0 }, { "cite": "363 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3557937 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/363/0272-01" ] }, { "cite": "364 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3034001 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/364/0143-01" ] }, { "cite": "357 Ark. 545", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5401599 ], "weight": 5, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0545-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-12-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1997, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 824, "char_count": 19480, "ocr_confidence": 0.743, "pagerank": { "raw": 1.904149708128003e-07, "percentile": 0.7306868083814925 }, "sha256": "9bb685d44a3cfb2a48799123390388f6639e1acb5628ab1cf200b9318a403aed", "simhash": "1:e39af8226ca07ad2", "word_count": 3315 }, "last_updated": "2023-07-14T22:20:15.872106+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wallace A. GARDNER v. STATE of Arkansas" ], "opinions": [ { "text": "Jim Gunter, Justice.\nThis appeal arises from the conviction and sentence of appellant, Wallace Gardner, by a Pulaski County jury for the shooting death of Glen Ford, Jr. Appellant was convicted of capital murder, a violation of Ark. Code Ann. \u00a7 5-10-101 (Repl. 1997), a class Y felony, and aggravated robbery, a violation of Ark. Code Ann. \u00a7 5-12-103 (Repl. 1997), a class Y felony. Appellant was sentenced as a habitual offender to life imprisonment without parole on the murder conviction and twenty-seven years for the aggravated-robbery conviction. On appeal, he argues that the circuit court erred in denying his motion for directed verdict. We affirm.\nOn January 5, 2004, appellant and two other men approached the door of an apartment occupied by the victim and Joseph Kendall. Kendall allowed the men to come inside, and appellant asked the victim if he had any dope to sell. The victim replied that he did not have any dope and escorted them out of the apartment. According to accomplice testimony, the victim \u201crushed\u201d appellant, and appellant and the victim got into a physical altercation. Gunshots were fired, and the group fled the scene in a silver Impala. According to accomplice testimony, appellant admitted that he shot the victim in the chest. The victim suffered a gunshot wound and died from loss of blood and a collapsed lung.\nOn March 10, 2004, the State charged appellant by felony information with capital murder, aggravated robbery, possession of a firearm, and possession of a firearm by a felon. Appellant was tried on September 28 and 29, 2004. At trial, the following testimony was presented. Appellant\u2019s accomplice, DeAngelo Smith, testified that he received a telephone call from his cousin, Fate McMiller, and Smith went to McMiller\u2019s house. Appellant, McMiller\u2019s brother, and his girlfriend, Kia, drove to McMiller\u2019s house in a silver Impala. Appellant drove McMiller and Smith to several apartment complexes, dropped off Kia, and picked up Wayne Derrick, who said that he needed $400.00. The group then drove to a trailer where one man gave Derrick some bullets. After that, the group went to the victim\u2019s apartment looking for \u201ca white guy and a black guy.\u201d Appellant passed a gun to McMiller, and they discussed how to use the gun. According to Smith, the purpose of going to the victim\u2019s apartment was to \u201cget the dope and the money.\u201d\nSmith testified that, once inside the apartment, appellant and the victim were arguing, and the victim insisted that he had no more dope. At trial, the following colloquy occurred during Smith\u2019s testimony:\nQ: Do you know what was being said by Wallace Gardner [appellant] and the other guy?\nA: No, ma\u2019am. The only thing I heard was the black \u2014 the black male [the victim] saying that he \u2014 he doesn\u2019t have anymore \u2014 anymore dope.\nQ: What happened after that?\nA: After that, that\u2019s when I turned around and Wallace was walking to the door. So we were about to leave and the white \u2014 and the black male was walking behind us. And so I was behind the black male. I was behind him. And Wallace opened the door, and when he opened the door, the black guy was like close to him and I was like behind them, like walking out the door, and he [appellant] turned around.\nQ: What happened next?\nA: When he turned around, the black guy \u2014 black guy rushed him, and the black guy ran toward him in a \u2014 in a forceful way. And they were starting to go out the door, and I heard a shot. I heard a gunshot.\nQ: What happened after you heard the gunshot?\nA: After I heard the gunshot, I started to go out the door, and I looked to my left and I see the white male with a gun in his hand.\nQ: Okay. Then what happened?\nA: And then after that, I ran out the door. And when I ran out the door, I started running towards the car. And when I got to the car, the car was \u2014 well, it wasn\u2019t parked. It was like \u2014 like out of the parking spot and like fixing to go down the road \u2014 down the roadway. Arid when I looked back over \u2014 well, when I made it to the car, the doors were locked. And when I looked over the car, I seen Wallace and the other individual were tussling.\nQ: When you say both of them, are you talking about Wallace Gardner and the guy that was in the apartment?\nA: Yes, ma\u2019am.\nQ: Did anybody talk about what happened?\nA: After \u2014 after we entered the car?\nQ: After you got in the car.\nA: When we got in the car, he \u2014Wallace was \u2014 the guy \u2014 the guy asked, you know, what happened. And Wallace was like I shot him right here. And he said I shot him right here, and it was like pointing in the upper \u25a0\u2014 upper part of the chest.\nOn cross-examination, Smith admitted that he lied to police officers during their investigation.\nLakea Warren, appellant\u2019s former girlfriend, testified that she and appellant were together on the evening ofjanuary 4, 2004, and that appellant was driving her 2000 silver Impala. Appellant dropped 'her off, and she found appellant and her car the next morning.\nEdward Henderson, who lives in a trailer in McAlmont, testified that appellant and other men came to his trailer on the night ofjanuary 4 or January 5, and they left with some ammunition. Chris Perry, who lived at the same apartment complex as the victim, testified that on the night ofjanuary 5, 2004, he heard gunshots and noticed a silver vehicle driving \u201cerratically\u201d with \u201ca male running on the side ofit.\u201d Additionally, Linda Williams, who lived next door, testified that she heard gunshots outside her apartment, and a bullet passed through her apartment and lodged in a wall.\nPivotal testimony came from Joseph Kendall, who was with the victim at his apartment on the night of the murder. Kendall recognized appellant as one of the men who came to the victim\u2019s apartment. Kendall testified that, between 11:30 p.m. and 12 a.m., the three men came into the apartment and wanted to know if they had any dope. According to Kendall, the victim would have sold dope to appellant, but he did not know him. Appellant \u201chad a funny look on his face\u201d and \u201cwas the only one that said anything.\u201d The following colloquy occurred at trial:\nQ: What did he [appellant] say to you?\nA: He just \u2014 well, like do y\u2019all got some dope? He was like I know y\u2019all got some. He just kept really pushing the issue on it.\nQ: Okay. So y\u2019all said you didn\u2019t have any dope to sell?\nA: Right.\nQ: And what happened then?\nA: Well, he was like all right we\u2019re fixing to go. So the other two dudes, they left out first.\nQ: All right.\nA: And he [appellant] left out last. And he asked one more time like man y\u2019all sure y\u2019all ain\u2019t got nothing? I was like no, we ain\u2019t got nothing. So Glen was like closing the door, and I was looking out the window trying to see what kind of car or whatever they was in because we live in a \u2014 it\u2019s like a dead end where our apartment is, and I didn\u2019t see no car outside. And when he was closing the door, I heard Glen say hold on____And then the door swung open and then I heard \u2014 I heard two shots.\nQ: What, the door was kind of like knocked open?\nA: Right.\nQ: And who was \u2014 who was he walking out the door \u2014 who was the person he was next to when he was walking out the door?\nA: Well, he wasn\u2019t really next to him. He was kind of like right behind him.\nQ: Who was he right behind?\nA: He was the last one to leave.\nQ: This guy [appellant] was?\nA: Right.\nKendall testified that he hid cocaine and a gun that was on the victim\u2019s person before calling 911. It was later determined that the victim had 8 grams of cocaine on his person.\nKendall further testified that he identified appellant, a local rapper, from a CD cover while at a friend\u2019s house. Kendall stated, \u201cSo as soon as he [friend] brought me the cover, I looked at the picture. I was like this is the dude right here. It just \u2014 you know, it just all came to me right then.\u201d Detective Mike Blain, an investigator who was assigned to investigate the victim\u2019s death, testified that Kendall identified appellant in a photo spread.\nDr. Charles Kokes, chief medical examiner at the Arkansas State Crime Laboratory, testified that the cause of death was the gunshot wound. He testified that the victim had cocaine in his system. A tube of Chapstick and $126.85 were present on the victim\u2019s person.\nThe jury convicted appellant of capital murder and aggravated robbery, and sentenced him to life imprisonment without parole and a consecutive term of 324 months. From this conviction and sentence, appellant brings his appeal.\nAppellant\u2019s sole point on appeal is that the circuit court erred in denying appellant\u2019s motion for directed verdict on the capital-murder charge. Specifically, appellant challenges the sufficiency of the evidence on the basis that there was insufficient corroboration of accomplice testimony. Appellant further asserts that the State\u2019s corroborating evidence is insufficient to sustain the burden of proof for the underlying felony of aggravated robbery.\nIn response, the State argues that it is not required to prove each element of the offense independently of the accomplice\u2019s testimony. The State further asserts that appellant\u2019s claims should be rejected because the evidence demonstrated that the underlying felony of aggravated robbery was attempted and that appellant was connected to the crime.\nIt is well settled that we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. 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. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. The requirement that a defendant make a specific directed-verdict motion extends to any challenge to the sufficiency of the evidence corroborating an accomplice\u2019s testimony, and the failure to challenge the sufficiency of accomplice-corroboration evidence in a directed-verdict motion at trial precludes appellate review on that ground. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).\nAppellant does not challenge the sufficiency of the evidence supporting the act of the murder itself, but rather, his argument focuses on the State\u2019s proof offered in support of the underlying felony of aggravated robbery. Appellant was convicted of capital-felony murder with aggravated robbery as the underlying felony, pursuant to Ark. Code Ann. \u00a7 5-10-101(a)(l), which provides in pertinent part:\n(a) A person commits capital murder if:\n(1) Acting alone or with one (1) or more other persons, he or she commits or attempts to commit... robbery..., and in the course of and in furtherance of the felony or in immediate flight therefrom, he or she or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]\nId. Under the capital-felony-murder statute, the State must first prove the felony, so the felony becomes an element of the murder charge. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).\nA person commits the offense of aggravated robbery \u201cif he commits robbery as defined in \u00a7 5-12-102, and he (1) [i]s armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) [i]nflicts or attempts to inflict death or serious physical injury upon another person.\u201d Ark. Code Ann. \u00a7 5-12-103 (Repl. 1997). 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. \u00a7 5-12-102 (Repl. 1997).\nThe accomplice-corroboration statute, found at Ark. Code Ann. \u00a7 16-89-lll(e)(l) (2003), provides:\n(e)(1) A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.\n(2) However, in misdemeanor cases, a conviction may be had upon the testimony of an accomplice.\nId.\nCorroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not directed toward corroborating the accomplice\u2019s testimony. Id. The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the accused with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice\u2019s testimony. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996).\nWith this well-established precedent in mind, we turn to the present case. Appellant\u2019s attorney made the following motion for directed verdict at the close of the State\u2019s case-in-chief, where the following colloquy occurred:\nDefense counsel: Your Honor, at this time I would move for a directed verdict. I feel like the State has not met its burden of proof regarding the capital murder. They have not shown it was Wallace Gardner, first of all. I think there\u2019s been several different \u2014 the Joe Kendall gave several different descriptions about the person and said several different times that he didn\u2019t know the person, never saw their face, many different things that caused him to question the identity. Also, I would add that there\u2019s no showing that this was committed in the course or in furtherance of an aggravated robbery. There\u2019s been no showing of anything taken, no money, no drugs taken. There\u2019s been \u2014Joe Kendall said that he never saw anybody with a gun, there was never anything going on that indicated a robbery. And in DeAngelo Smith\u2019s first sworn statement, he said that it was no robbery. I think the State\u2019s not met its burden of proof with regard to that, and that would be my same argument for the aggravated robbery count. Also, to simply say that as far as there\u2019s also not been sufficient corroboration of \u2014 of DeAngelo Smith\u2019s statement regarding this incident.\nThe Court: Okay. In viewing the light most favorable to the State and in viewing the evidence and the testimony in the light most favorable to the State, which I believe is my standard at this point in time during the trial, I\u2019ll deny the defense\u2019s motions for directed verdict ...[.]\nHere, there is sufficient evidence to support appellant\u2019s conviction of the underlying felony, aggravated robbery, after eliminating the accomplice testimony of DeAngelo Smith. Other corroborating evidence presented at trial demonstrates that appellant (1) had the purpose of committing theft with the use of physical force, (2) was armed with a deadly weapon, and (3) caused the death of the victim. See Ark. Code Ann. \u00a7\u00a7 5-12-102 through 103. First, appellant had the purpose of committing a theft with the use of physical force. Appellant and three other individuals went to Henderson\u2019s house with the purpose of acquiring ammunition for their firearm. One individual remained in a getaway car while appellant, Smith, and McMiller went to the victim\u2019s apartment. Kendall, the victim\u2019s friend and a witness at the scene, provided crucial testimony that he did not know appellant, but appellant and \u201ctwo other dudes\u201d showed up unexpectedly at the victim\u2019s apartment and repeatedly asked \u201ca dozen\u201d times if Kendall and the victim had any dope. According to Kendall, appellant insisted, \u201cI know y\u2019all got some.\u201d Kendall testified that appellant and the others did not follow the. victim\u2019s typical procedure for a drug transaction. He stated, \u201c[N]obody had called or nothing. Because we usually work off of the phone or whatever.\u201d Kendall further testified that the victim did not want to sell any dope to appellant, who had a \u201cfunny look on his face.\u201d While the group was present in the victim\u2019s apartment, appellant was the only one who did the talking. This fact demonstrates that the group was not present for a social visit, but rather they went to the apartment, armed, to steal drugs from the victim. Kendall further stated that the other two men left first. As the victim shut the door, Kendall heard the victim say, \u201c[H]old on,\u201d to appellant before he heard two gunshots. Thus, based upon these circumstances, we conclude that appellant had the purpose of committing theft with the use of physical force.\nThe second element of appellant\u2019s possession of a deadly firearm is satisfied. See Ark. Code Ann. \u00a7 5-12-102. Henderson testified that appellant and three men came to his trailer, where appellant displayed a gun. Henderson provided ammunition for the firearm, and Kendall testified that, although he did not see a handgun on appellant\u2019s person, he heard two gunshots fired after the other two men left the victim\u2019s apartment after the struggle between appellant and the victim ensued. Additionally, the third element is satisfied. See Ark. Code Ann. \u00a7 5-12-102. Dr. Kokes testified that the victim died from a gunshot wound. Therefore, the testimony presented at trial, without the use of the accomplice testimony, tends to a substantial degree to connect the accused with the commission of the crime. See Rhodes, supra. Based upon our standard of review of viewing the evidence in the light most favorable to the State, we hold that there was substantial evidence to support appellant\u2019s capital-murder conviction with the underlying aggravated-robbery felony. Accordingly, we affirm the jury\u2019s verdict.\nThe State asks us to reject the \u201ctest of elimination\u201d requirement articulated in Froman v. State, 232 Ark. 697, 702, 339 S.W.2d 601, 604 (1960), and its progeny, as the State contends that the requirement \u201cdoes not comport with the requirement enacted by the legislature.\u201d See Ark. Code Ann. \u00a7 16 \u2014 89\u2014111 (e) (1). However, based upon our holding in this case, we see no need to disrupt our long-standing case law on this issue by eliminating the requirement. There is sufficient evidence to support appellant\u2019s conviction after eliminating the accomplice testimony of DeAngelo Smith and relying upon the testimony of Joseph Kendall, Edward Flenderson, and Dr. Kokes.\nPursuant to Ark. Sup. Ct. R. 4-3(h), we have reviewed the record and have determined that there are no errors with respect to rulings on objections or motions prejudicial to the defendant not discussed above. Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005).\nAffirmed.", "type": "majority", "author": "Jim Gunter, Justice." } ], "attorneys": [ "Cullen & Co., PLLC, by: Tim Cullen, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Wallace A. GARDNER v. STATE of Arkansas\nCR 05-472\n221 S.W.3d 339\nSupreme Court of Arkansas\nOpinion delivered January 5, 2006\n[Rehearing denied February 9, 2006.]\nCullen & Co., PLLC, by: Tim Cullen, for appellant.\nMike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0506-01", "first_page_order": 532, "last_page_order": 542 }