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Thomas v. State

Court of Appeals of Arkansas, Division I

September 24, 2014


Page 919


Snively Law Firm, by: Nick Churchill, for appellant.

Dustin McDaniel, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.



Page 920


Appellant Xavier Thomas was convicted by a jury of first-degree murder and attempted first-degree murder and sentenced to 44 years' imprisonment. On appeal, appellant contends that the trial court erred in (1) denying his motion for directed verdict; (2) finding that the door had been opened to allow the State to cross-examine him about prior convictions; and (3) denying him his Sixth Amendment right to the counsel of his choice. We find no error, and we affirm his convictions.

Testimony at trial revealed the following. On October 25, 2011, appellant met the victims, Paul Fells and Thristian Hunter, outside the Sunset Village Apartments in Pine Bluff, where the victims had been hanging out and drinking. Hunter testified that he had never met appellant but that appellant was introduced as Zay. He said that Zay hung out with them and that he saw Zay show a chrome gun with a black handle to someone named Maurice. Hunter said that Zay left but then kept calling Fells's cell phone " over and over and over and over." Fells did not answer it, but he told Hunter that it was Zay calling. While Fells and Hunter were walking toward Fells's sister's house, Zay showed up again and asked Fells why he did not answer his phone. According to Hunter's testimony, Fells told Zay that he did not hear it ring. Fells, Hunter, and appellant then walked to the liquor store together. While walking, Zay's phone began ringing over and over. Zay answered it and, according to Hunter, told the caller that he was " fixing to handle some business." He then told Fells and Hunter that he had to check his gun. He took it out, checked it, put it back, and then started shooting. Hunter testified that Zay was several feet away from Fells and that he shot Fells in the head. Fells did not survive his injuries. Hunter said that Zay then started shooting Hunter, who ran. Hunter was shot five times while trying to escape.

Officer Ryan Edwards of the Pine Bluff Police Department testified that he was called to investigate a possible prowler near Sunset Village Apartments. While on his way there, he was flagged down by someone who alerted him to Hunter, lying in a nearby yard. Hunter told Officer Edwards about Fells, who was leaning against the brick wall of a nearby duplex.

Detective Michael Roberts testified that he responded to a call about the shooting and spoke with Hunter at the scene. Hunter told Detective Roberts that the shooter was a light-skinned male with a bunch of tattoos and " messed-up teeth." Hunter also told him that the shooter's phone number should have been in Fells's cell phone because he had just called Fells before the shooting.

Page 921

Detective Jacqueline Stevenson testified that she spoke to Hunter in the hospital room two days after the shooting. Hunter gave her the same description of the shooter that he had given to Detective Roberts. She brought Hunter several photo lineups, but he was unable to identify the shooter. Hunter later attempted to contact the Pine Bluff police to speak to a detective, and Detective Larry Gailey returned his call on November 3, 2011. Hunter told Detective Gailey that the shooter was known to him only as Zay or Nardo. Again, Hunter was unable to identify the shooter from a photo lineup provided by Detective Gailey. Detective Stevenson visited Hunter at his home a few days later and showed him several more photo lineups, but Hunter could not identify the shooter. Finally, on December 12, 2011, Detective Stevenson showed him another photo lineup, the eleventh one, and Hunter instantly identified appellant as the man who had shot him and who had shot and killed Fells. Appellant's photo had not appeared in any of the previous photo lineups shown to Hunter.

Detective Stevenson testified that she arrived on the scene to investigate the shooting at approximately 9:06 p.m. She also said that, according to Hunter, the last person to call Fells on his cell phone was the shooter. She testified that the last missed call on Fells's cell phone was from someone identified on the phone as " X" at 8:41 on the night of the shooting. There were at least five missed calls from X between 6:39 and 8:07 to Fells's phone.

Finally, Hunter identified appellant in the courtroom at trial as the man who had shot Fells and him on October 25, 2011. He testified that he was " 1,000 percent certain that that's the individual that shot me." The jury found appellant guilty of first-degree ...

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