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Jones v. State

Court of Appeals of Arkansas, Division I

August 28, 2019



          Laura Avery, for appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.


         A Washington County jury convicted appellant Freddie Lee Jones of aggravated robbery and being a felon in possession of a firearm. Appellant was sentenced as a habitual offender to forty years' imprisonment for the aggravated-robbery conviction and five years' imprisonment for being a felon in possession of a firearm. The sentences were to run concurrently for an aggregate prison term of forty years. Appellant appeals his convictions, arguing that the circuit court erred by denying his pretrial motion to suppress pretrial identifications of him and by denying his directed-verdict motion. We affirm.

         Appellant was accused of the aggravated robbery of the Valero gas station located at the corner of Zion and Crossover Roads in Fayetteville on October 20, 2017. When the Fayetteville Police Department (FPD) could not find a suspect, they turned to Facebook. An edited copy of the surveillance video of the robbery was posted to FPD's Facebook page around October 30, 2017, to find leads.[1] FPD subsequently received an anonymous tip naming appellant as the suspect. Appellant was arrested and charged with aggravated robbery and being a felon in possession of a firearm. He filed several pretrial motions to exclude evidence, including the pretrial identifications of him by two witnesses. A motions hearing took place on May 23, 2018.

         Detective Nick White of the FPD testified that he was the lead investigator on the Valero robbery case. He stated that he processed the scene and spoke with the victim, Manish Patel. He also said that he collected surveillance footage of the robbery on October 21, 2017, the day after the robbery. He testified that he did not identify any specific person as a suspect at that time. He stated that two patrol officers had canvassed the area and come up with two potential persons of interest, but they were eventually ruled out. Detective White stated that FPD's community-oriented policing division posted the surveillance video to the public on the FPD's Facebook page. He said that instead of "having the actual audio from the surveillance footage[, ] we had a scary music video soundtrack to it." He stated that he did not get any tips or develop any information about who the suspect was between the time of the robbery and the time of the Facebook post. He admitted that he had developed a suspect of his own but ruled him out based on the presence of tattoos on the person's wrists that were not present in the surveillance video. He testified that he received an anonymous call naming appellant as the suspect after the video had been posted to Facebook. He stated that the caller was female and that she gave specific information as to why she believed appellant was the suspect, where he lived, and with whom. He said that no one else called in any tips or information about the robbery. Detective White stated that the informant left a voicemail for him but called back and spoke to him directly. He said that he did not have contact with the informant again until about a week before the hearing. He testified that the prosecutor told him that the informant was Haylie West, Natasha Marquez's daughter. He stated that based on the tip, he asked patrol officers to go to appellant's residence at 804 South Erika and attempt to locate either appellant or his girlfriend, Marquez, so that they could be interviewed. He said that he eventually interviewed both of them. He said that Marquez was aware that appellant was the person he was investigating for the robbery.

         Detective White stated that he spoke with Jarren Brown, appellant's cousin, following Brown's arrest on unrelated narcotics charges. He stated that Brown requested to speak to him the day Brown was arrested and that Brown indicated appellant was the person on the video. He said that Brown stated that Marquez had shown him the Facebook post and that it was "definitely [his] cousin" on the video. Detective White testified that he and Brown viewed the surveillance video later, after Brown had already identified appellant as the person. He stated that Brown identified appellant on the surveillance video by appellant's stature, appearance, and voice.

          Detective White testified that appellant was initially arrested on an unrelated warrant. He stated that he interviewed Marquez, and she gave statements concerning appellant's involvement in the robbery. He said that Marquez's statements included intimate details that had not been released to the public, including the fact that the victim would not stop eating peanuts. He stated that appellant was then arrested on the robbery charge. He said that Marquez denied any involvement at the time and was released.

         On cross-examination, Detective White stated that he spoke with Marquez three separate times before she was arrested. He said during the first interview, Marquez identified appellant as the robber. In the second interview, Marquez stated that the victim would not stop eating peanuts, that appellant had to fire his weapon twice, and that the victim would not give appellant the money. According to Detective White, in the third interview, Marquez admitted being the driver on the night of the robbery and gave information about where she parked during the commission of the robbery. He said that Marquez told him that appellant had taken the weapon to Brown's residence. The narcotics detectives were subsequently involved and conducted a controlled buy at Brown's residence. A search warrant was issued, and Brown was arrested. He stated that Brown denied having the weapon but stated that appellant had approached him about buying the weapon. He testified that after Brown heard the voice on the video, Brown said "without a doubt that it was [appellant's] voice." Detective White said that Brown was never charged for the robbery.

          Jarren Brown testified that he was arrested on November 7, 2017, for simultaneous possession of drugs and firearms. He said that Detective White asked him about the gun used in the robbery but that he did not have the gun or anything to do with the robbery. He stated that he received a copy of the Facebook post from Marquez and that he initially thought it was a joke or something. He stated that when Detective White showed him the Facebook post after his arrest, he told Detective White that "it kind of looked like [his] cousin," based on appellant's build and stature.

         On cross-examination, Brown stated that he had known appellant nearly his entire life. He said that he had spent a lot of time with appellant and was familiar with the way appellant carried himself and with his voice. He testified that appellant approached him trying to sell a black .38 revolver. He stated that before he watched the video with appellant's voice on it, he thought it was appellant by the way the suspect walked. He denied receiving help in his criminal case from Detective White, stating that if he had received help, he would have been able to get out of jail without making bond.

         Haylie West testified that she was familiar with the Facebook post of the robbery. She said that her aunt, Treva Parker, first showed her the video and suggested that it was appellant on the video. She said that she was unaware that the FPD had posted the video when she first saw it. She stated that she watched the video at least ten times to make "absolutely certain that it was [appellant]." She testified that after the watching the video, she was 100 percent sure it was appellant. She stated that she talked to her younger sister, A.K., before calling in the tip. She said that A.K. had lived in the house with appellant from March until November 2017. She stated that she knew appellant "fairly well" and saw him about once a week when she came to see Marquez and that she had stayed the night a couple of times. She testified that she "hung out" with appellant fifteen to twenty times between March and November. She stated that she was able to identify appellant as the person in the video based on his walk, hair, height, and work boots. She said that she initially had concerns about the weight of the robber until she noticed how small the robber's wrists were and realized that the robber could have been wearing extra clothing. West stated that she left a voicemail for Detective White the night she watched the video and that she called again the next day after showing the video to her other sister. She said that one of her sisters had also recognized the damaged backpack carried by the robber as the one appellant carried. She testified that when she watched the unedited video about a week before the hearing, she knew it was appellant.

         On cross-examination, West testified that she thought appellant was the robber from the first time she saw the video. She said that she watched it several times because she wanted to make sure before calling the police because she did not want to "accuse someone falsely." She stated that she asked her sister to watch the video, and her sister identified appellant as the robber and said that appellant had that Under Armour backpack that would not zip. She said that she did not know her mother was in trouble when she gave the tip, but that she reported appellant as the robber because it was "the right thing to do." She stated that after hearing the robber's voice, she was more confident that it was appellant.

          On redirect, West stated that she used her phone to take a picture of appellant and put it side by side to the person in the video the day she spoke to Detective White. She testified that she was "certain that [her] information was correct. Taking the photo was more just for [her]." On recross, she stated that she was sure it was appellant the first time she saw the video and that she would not have called the police unless she was absolutely sure.

         The court heard counsels' arguments, and at the conclusion of the hearing, ruled that the pretrial identifications would not be excluded.

         Appellant's jury trial began May 23, 2018. Officer Justin George of the FPD testified that he answered the robbery call on October 20, 2017, at the Valero gas station. He stated that he was able to watch surveillance video of the robbery while at Valero that night and that he saw a black male dressed in black pants, a black plaid shirt with white stripes, tan boots, and a mask enter the store and commit the robbery. He said that he gave a description of the suspect but that no one was found that night.

         Manish Patel testified that he is the owner of the Valero in question and that he was working the night of October 20, 2017. He stated that a black man came into the store with a gun and demanded money. He said that the robber asked for money as he approached the register, fired a shot, reached over in the register, said something about "killing" him, hit Patel's cell phone with the gun, fired another shot, and turned and left the store. He stated that the robbery was "really quick." He said that he was eating peanuts as the robber approached the register. He testified that the robber took approximately $415 or ...

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