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Chavez v. State

Court of Appeals of Arkansas, Division I

October 31, 2018

ALBERTO DAMIEN CHAVEZ APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66CR-17-65] HONORABLE J. MICHAEL FITZHUGH, JUDGE

          Ledbetter, Cogbill, Arnold & Harrison, LLP, by: Joseph Karl Luebke, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant Alberto Damien Chavez appeals after he was convicted by a Sebastian County Circuit Court jury of murder in the second degree and seven counts of committing a terroristic act. Each count was additionally enhanced because the jury found that he employed a firearm during the commission of each felony. He was sentenced to serve a total of 110 years' imprisonment. On appeal, appellant contends that (1) the trial court erred in denying his motion to suppress and admitting the video of his interrogation at the Fort Smith Police Department into evidence; (2) the trial court erred in denying his motions for directed verdict; (3) the trial court erred in refusing to instruct the jury on the lesser-included offense of manslaughter; and (4) the trial court erred in substituting an alternate juror for a juror who had a health issue after deliberations had already started. We affirm.

         I. Relevant Facts

         In summary, appellant shot the victim, Justin Lopez, in a gang-related shooting on January 14, 2017. On that night, appellant, Ryan Oxford, Bryan Porras, and Jorge Chirinos traveled to a trailer in Fort Smith where rival gang members, Lopez and Trey Miller, were inside. The gang members fired over forty shots with an AK-47 rifle (AK-47) and an AR-15 rifle (AR-15), and one of those rounds penetrated the trailer and killed Lopez. Appellant gave incriminating statements to law enforcement about the incident during a recorded interview, and he was subsequently arrested. Appellant was charged with murder in the first degree and seven counts of committing a terroristic act. He was also charged with enhancements for employing a firearm during the commission of each felony charge.

         Appellant filed a motion to suppress his statements and any resulting evidence. Appellant alleged that the statements he made to law enforcement were not voluntarily obtained and that he did not make a knowing and intelligent waiver of his Miranda rights. The State responded that appellant's statements were voluntary. The State explained that Detective Bill Hardin began the interview by going over the "Interrogation Advice of Rights" form and that appellant initialed that he understood each right and signed at the bottom of the form, indicating that he was waiving his rights. Therefore, based on the totality of the circumstances, the State contended that appellant made a knowing and intelligent waiver of his Miranda rights and that appellant's motion should be denied.

         At the hearing on the motion to suppress, appellant's counsel argued that appellant claimed that he was under the influence of intoxicating substances, including alcohol, morphine, Lorazepam, and marijuana, at the time he gave his statement. Counsel additionally argued that law enforcement improperly made promises of leniency in return for appellant's statement.

         Detective Anthony Parkinson testified at the suppression hearing that he developed appellant, Oxford, Porras, and Chirinos as possible suspects in Lopez's murder after he spoke with several guests at a wedding party held at the Fort Smith Convention Center. Other guests at the wedding told the detective that the four possible suspects were members of a gang named the "Slangez" and that just before the shooting, they were asking guests at the party about the whereabouts of the "Clout Boyz," a rival gang. After the shooting, Detective Parkinson interviewed appellant at the police department. Appellant was read his Miranda warnings from the "Fort Smith Police Department Advice of Rights Form." Detective Parkinson stated that appellant initialed by each of his rights and signed the bottom of the form, indicating that he was waiving his rights. Detective Parkinson admitted that he used "street language," which included using curse words, in order to make appellant feel more comfortable during the interview. The detective denied making any promises to appellant other than the fact that he would inform the prosecuting attorney everything that appellant told him in the interview. He testified that appellant did not appear to be under the influence of drugs or alcohol at the time of the statement, nor did appellant tell him that he was under the influence of any drugs or alcohol. A video of the interview and a copy of the transcript were introduced into evidence.

         After hearing the evidence and argument of counsel, the trial court denied appellant's motion to suppress. The trial court found that law enforcement did not make any promises of leniency or coerce appellant to make the statement. The trial court further found that appellant's self-serving claim that he was under the influence of drugs and alcohol lacked merit.

         A jury trial was held, and several witnesses, including Trey Miller, Baldomero Hernandez, Jorge Chirinos, and law enforcement officers testified. Trey Miller testified that his friend, Lopez, was shot in a trailer that was located on the back of a piece of property in Fort Smith, Arkansas. Miller's grandmother, grandfather, sister, and nephew lived in the house that was located on the same property. Miller admitted at trial that Lopez, Roberto Aguilar, Sylvester Aguilar, and he were in a gang named "The Clout Boyz." Miller testified that on January 14, 2017, Lopez came to the trailer around 6:40 p.m. and that Lopez brought marijuana, a scale, and a shotgun with him. Two girls, Lopez's cousin (Roberto Aguilar), and Guadalupe Chavez-Rodriquez also came over to the trailer that night. Lopez sold marijuana to Aguilar and Rodriquez, and Miller admitted that he had smoked marijuana and drank beer. Miller testified that everyone, except Lopez and he, left by 9:30 p.m. that evening and that the shooting occurred about an hour or hour and a half afterwards. Miller testified that they were in the trailer when they saw a car pull up and heard someone approach. Lopez grabbed a shotgun, went toward the door, and asked who was there. Miller was able to see a "chubby guy" approaching in a gray hoodie. When no one answered, Lopez racked the shotgun. Miller testified that he saw the person take off running away from the door and heard him say "shoot, shoot, shoot, shoot." Lopez ran into the master bedroom, and Miller ran to the back of the trailer. Miller testified that he heard multiple shots and then screaming outside in what he described as celebration. Miller further testified that after the shootings subsided, he found Lopez lying on the floor in the bedroom.

         Sherry McKinney testified that Trey Miller is her grandson and that Miller would stay in the trailer to hang out with his friends. McKinney explained that she woke up to the sound of gunshots around 10:30 p.m. Miller later told her that Lopez was dead. Although McKinney called the police, they were already en route, and she gave law enforcement consent to search everything in the area, including the trailer.

         Jorge Chirinos testified at trial that he was a member of a gang called the "Slangez" with appellant, Oxford, Porras, and Roberto Castillo. Other names for the gang were "Slangez96," "Slangez Syndicate 96," or "S96." Chirinos testified that his gang did not get along with the "Clout Boyz," and he identified Miller and Lopez as two members of the "Clout Boyz." Chirinos further explained that Lopez had "snitched" on Porras and that Lopez's action required consequences. Chirinos testified that Oxford owned an AK-47 rifle and that Porras owned an AR-15 rifle.

         Chirinos testified that on the night of the murder, he had hung out and smoked marijuana with appellant and Porras until 9:00 p.m. Porras dropped him off at his home so he could trade marijuana for beer, and Porras subsequently picked Chirinos back up around 10:00 p.m. Porras, Oxford, and appellant were with him at that time in a tan or silver Chevrolet car. They went to a wedding party at the Fort Smith Convention Center, and at the wedding party, he overheard appellant and Porras asking where the "Clout Boyz" were. Porras later said that he knew where the trailer was, and Porras drove them there. In the car, Porras instructed them to put on masks. Chirinos stated that appellant wore a Jason Halloween hockey mask and that they all wore purple bandanas, which was the "Slangez's" color. Once at the trailer, they all got out of the car. Appellant carried the AR-15, and Porras carried the AK-47. Porras opened the gate and went up to knock on the door. Chirinos testified that he could hear talking from inside the trailer but could not understand what was said. Porras turned away from the door and yelled to shoot, and Porras and appellant started shooting at the trailer. Chirinos heard Porras and appellant cheering and yelling, "Hell, yeah," and they got back in the car and drove away. They went back to Porras's home, and Porras, Chirinos, and appellant stayed there until Porras took appellant and Chirinos home around midnight or 1:00 a.m. Chirinos denied holding any of the guns that night and stated that he thought the plan was only to rob Lopez and Miller.

         Baldomero Hernandez testified at trial that he knew Porras, Guadalupe Chavez-Rodriquez, and appellant through his school. Hernandez further testified that he saw appellant, Porras, and Oxford all wearing purple bandanas at a wedding party on the night of the murder.

         Detective Bill Hardin testified at trial that he interviewed Trey Miller at the police department. Miller told him that he was a member of the "Clout Boyz" and that a rival gang, the "Slangez96," did not like them. The information Miller provided led to other witnesses who aided in the investigation. Other witnesses confirmed that appellant, Porras, Chirinos, and Oxford were members of "Slangez96." Detective Hardin testified that Oxford and appellant were brought in for questioning at the same time. Although Detective Hardin was initially present during appellant's interview, he later left the room to question Oxford in another room. Oxford's interview led Detective Hardin to later recover from Oxford's residence the AK-47 used in the incident, AK-47 magazines, and a purple bandana. During the investigation, Detective Hardin also found a DPMS AR-15 rifle located in Porras's residence along with AR-15 magazines, two Halloween masks, and a cell phone. The cell phone that was taken had a previously recorded video unrelated to this shooting in which appellant can be seen holding the AK-47, Porras holding the AR-15, and Oxford holding a handgun. Appellant is wearing a black hoodie in the video.

         Detective Anthony Parkinson testified at trial that he was assigned to investigate the homicide. At the scene, he briefly spoke with Trey Miller. After further investigation and speaking to other witnesses, Detective Parkinson developed appellant as a suspect. He located appellant at his mother's home and took him to the police department for a recorded interview. Detective Hardin began the interview with appellant by going over the Miranda-rights form. However, Detective Hardin left to interview another suspect, Oxford, and Detective Parkinson took over appellant's interview.

         According to Detective Parkinson, appellant repeatedly requested some type of deal during the interview. However, Detective Parkinson testified that he continued to tell appellant that appellant needed to tell the truth and that he (Detective Parkinson) would tell the prosecuting attorney everything appellant said. Although appellant tried to obtain some type of reassurance from Detective Parkinson that he was going to get some benefit out of the interview, Detective Parkinson stated that it was not something he was authorized to make.

         Over appellant's objection, a redacted version of the video interview was played for the jury. In summary, appellant made several incriminating statements to Detective Parkinson. Appellant admitted that he went to the wedding party at the Fort Smith Convention Center the night of the murder and that he spoke with Baldomero Hernandez and Guadalupe Chavez-Rodriquez. Appellant stated that Porras, Chirinos, and Oxford were seeking information at the wedding on where they could find some "Clout Boyz." They eventually drove to the trailer, and appellant stated that everyone had a "big a** gun" in their hands but him. Appellant stated that Chirinos had told him that the plan was to "light it up and just scare [Lopez], maybe that will send a message to the rest of them." Appellant further stated that when they arrived, he and Chirinos stayed in the car. Porras left the vehicle and went to the trailer, knocked on the door, and then returned to the car. This coincided with someone inside the trailer whistling and Porras turning around, facing the trailer, and shooting at the trailer. Appellant stated that Oxford was also shooting at the trailer. Appellant additionally stated that although he was supposed to get out to help collect the shell casings, they ...


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