Clark v. State

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          APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, OSCEOLA DISTRICT [NO. 47OCR-16-257], HONORABLE RALPH WILSON, JR., JUDGE

          Jeff Rosenzweig, for appellant.

         Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

          OPINION

         BRANDON J. HARRISON, Judge

          In 2018, a Mississippi County jury convicted Ashton Clark of first-degree murder and aggravated robbery. The State’s theory of the case was that Clark and three codefendants attempted to rob John Williams, who was shot and killed in the process. As his first point on appeal, Clark argues that his convictions should be reversed because the State failed to corroborate the accomplice testimony of Harold Weeden. We agree. Because the State lacks enough corroborating evidence to support Clark’s convictions, we must reverse and dismiss.

          I. The State Did Not Meet Its Burden of Proof

          A motion for directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). 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 when it can compel a conclusion. Id. Circumstantial evidence, in particular, is substantial when it excludes every reasonable hypothesis consistent with innocence; whether it does so is usually a jury question. Id. When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Id. Having stated the standard of review, we now apply it.

         Clark contends the circuit court erred by denying his motions for directed verdict. During the trial, Clark argued that "[t]here’s zero evidence that there was a robbery committed outside of the accomplice’s testimony." He also argued that Zaria Coleman’s testimony was insufficient corroboration under Ark. Code Ann. § 16-89-111 (Supp. 2017). In Clark’s view, Coleman’s testimony put him "at least an hour, if not more, before this robbery happened or murder happened. So that doesn’t even put him close in time to where it happened— to the crime." Clark renewed his challenge to the sufficiency of the evidence

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against him at the appropriate times. Given Clark’s motions, we must delve into the facts presented at trial.

          Zaria Coleman was gambling on Broadway Street in Osceola the day John Williams was shot and killed. Harold Weeden was with Coleman the day the shooting occurred. Weeden and Coleman were shooting dice when Zebarius Hawkins walked up in the middle of the game and whispered in Weeden’s ear. Weeden got up and left the game. Shakur Bingham, who is Coleman’s uncle, was there, too. Coleman said she became concerned because Hawkins "had just robbed one of [her] friends the week before." She told the jury that the three men "pulled across the street and picked up the next person," whom she identified as the defendant, Ashton Clark.

          According to Coleman, it was still light outside when she saw Clark leave with the other three men. Approximately an hour and a half later Coleman received a telephone call informing her that Williams had been killed. (She also said it could have been less than an hour later that she received the call.) On cross-examination, Coleman said that the men left the dice game about 5:00 or 5:30 p.m. She confirmed that she later saw Clark and Bingham walking near the homicide scene where a crowd of people had gathered. On redirect, Coleman said that when she saw the men leaving the dice game they were riding in "Harold [Weeden] momma truck," which was a "little four-door truck" or "SUV" that "had a sign on the side of it."

          Major David Scrivener of the Osceola Police Department testified that he was called the night John Williams was killed to help with "crowd control." While at the scene, Scrivener saw several video cameras that surveilled the area. Maurice Kelly, David Scrivener, Will Skaggs, and Jerry Hamilton testified about various surveillance videos that were taken from the victim’s residence at 117 Parkway, from a neighboring house at 111 Parkway, and from a nearby apartment or housing complex called Seminole Village. Ten videos were assembled on a portable storage device (usb flash drive) and collectively admitted at trial as State’s exhibit no. 10.

          Forensic pathologist Dr. Adam Craig testified that John Williams died from a bullet that entered the back of his brain. Arkansas State Crime Lab employee Deborah Britton testified that the bullet recovered from Williams’s head was consistent with a 9 mm Luger cartridge. Osceola police officer Colby Newell photographed the crime scene and confirmed that Williams had died there.

          Harold Weeden testified for the State. He agreed to speak against Clark in exchange for a conditional fifteen-year sentence. Weeden said that the plan on 12 October 2016 was to rob Williams because Williams had been pictured on Facebook with a large amount of money. Weeden said that he left the dice game and went across the street to see "Toots," who was Ashton Clark. There, Weeden, Clark, and Zebarius Hawkins discussed "hitting a lick," which Weeden said meant committing an aggravated robbery. Shakur Bingham joined the group. According to Weeden, during the robbery he (Weeden) used a "Dillinger" style gun that Bingham had supplied, Clark (the defendant) was the getaway driver, and Hawkins was the other gunman who used a 9 mm caliber handgun. Weeden said that during the robbery Hawkins shot at Williams five times. Clark and Bingham were waiting in a vehicle nearby and were "paranoid" after learning that Hawkins had shot Williams, which was not part of the plan.

          Clark’s defense was that he "wasn’t there and didn’t do it." To that end, Clark’s counsel called ...