Thomas v. State

Cite as 2014 Ark. App. 492

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-783

XAVIER THOMAS Opinion Delivered September 24, 2014
APPELLANT
APPEAL FROM THE JEFFERSON
V. COUNTY CIRCUIT COURT
[NO. CR2012-51-5]

STATE OF ARKANSAS HONORABLE JODI RAINES
APPELLEE DENNIS, JUDGE

AFFIRMED

RITA W. GRUBER, Judge

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.”
 Cite as 2014 Ark. App. 492

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.

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

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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 murder of Fells

and attempted first-degree murder of Hunter.

I.

For his first point on appeal, appellant contends that the trial court erred in denying

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his motions for directed verdict on both counts. Appellant argues that the State failed to prove

the elements of the two crimes or that he was the person who shot the victims. The issue on

appeal is whether there is substantial evidence to support the verdict. LeFever v. State, 91 Ark.

App. 86, 88–89, 208 S.W.3d 812, 815 (2005). Substantial evidence is evidence that is of

sufficient force and character that it will, with reasonable certainty, compel reasonable minds

to reach a conclusion and pass beyond suspicion and conjecture. Kaufman v. State, 2013 Ark.

126, at 4. Witness credibility is an issue for the jury, which is free to believe all or a portion

of any witness’s testimony and whose duty it is to resolve questions of conflicting testimony

and inconsistent evidence. Baughman v. State, 353 Ark. 1, 5, 110 S.W.3d 740, 743 (2003).

Our supreme court has held that the testimony of one eyewitness alone is sufficient to sustain

a conviction. Ellis v. State, 2012 Ark. 65, at 9, 386 S.W.3d 485, 490. Finally, when the

sufficiency of the evidence is challenged, we consider only the evidence that supports the

verdict, viewing it in the light most favorable to the State. LeFever, 91 Ark. App at 89, 208

S.W.3d at 815.

A person who causes the death of another person with purposeful intent commits first-

degree murder. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 2013). A person acts purposely with

respect to his conduct when it is his conscious object to engage in conduct of that nature to

cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). The law presumes that a

person intends the natural and probable consequences of his actions. Dunn v. State, 371 Ark.

140, 146, 264 S.W.3d 504, 508 (2007).

In this case, Hunter, an eyewitness, unequivocally identified appellant in a photo lineup

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and at trial as the person who shot Fells and him. The weighing of evidence lies within the

province of the jury, and we are bound by its determination regarding the credibility of

witnesses. Harmon v. State, 340 Ark. 18, 24, 8 S.W.3d 472, 476 (2000). After a jury has given

credence to a witness’s testimony, we will not disregard it unless it was “so inherently

improbable, physically impossible, or so clearly unbelievable that reasonable minds could not

differ thereon.” Williams v. State, 351 Ark. 215, 223, 91 S.W.3d 54, 58 (2002). One

eyewitness’s testimony is sufficient to sustain a conviction. Id. Hunter was at the scene, spent

time with appellant, and was within feet of the shooter when the event occurred. His

testimony is not so inherently improbable, physically impossible, or clearly unbelievable that

reasonable minds could not differ thereon. Considering only the evidence that supports the

verdict and viewing the evidence in the light most favorable to the State, we hold that

substantial evidence supports the jury’s verdict.

II.

For his second point on appeal, appellant claims that the circuit court erred in finding

that the door had been opened for the State to inquire about appellant’s previous

incarceration. He argues on appeal that the fact that he was previously incarcerated was

inadmissible under Rules 403 and 404(b) of the Arkansas Rules of Evidence, as the evidence

was clearly more prejudicial than probative. The State responds, claiming that appellant failed

to preserve this argument for appeal, and, if preserved, the court did not err because evidence

of prior convictions is allowed for impeachment purposes if a defendant chooses to testify.

We turn to the events surrounding appellant’s argument. During appellant’s counsel’s

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cross-examination of Hunter, the following exchange occurred:

APPELLANT’S COUNSEL: Do you want to tell the Court if anything else was going on
that night that had y’all in that yard and not in that street?

HUNTER: Walking to the—walking to the store to get some—more liquor.

APPELLANT’S COUNSEL: Okay. And that’s all that was going on, and that’s your
testimony?

HUNTER: Uh-huh. I don’t know why he started shooting. It’s—I ain’t going to lie.
It scared me though because it came out of the blue because I thought he was just—
I thought they was—thought they was cool the way they were talking. They was
talking like they—like talking like they was locked up together or something like, —
it was something about jail and all that, like they was locked up together. And he
didn’t say too much though. He kept his low profile.

Appellant did not object to this testimony, but at the conclusion of his cross-examination,

his counsel asked for a bench conference, where he argued to the court that this colloquy did

not “open the door” for the State to question appellant about his criminal history. The State

said it had no intention of pursuing this line of questioning with Hunter but responded that

it believed the door was open regarding the relationship between appellant and Fells and

indicated that if appellant “took the stand,” it would be “a different situation.” The court

stated that if appellant took the stand, “the door is open.”

We hold that appellant’s argument on appeal was not properly preserved. On appeal,

appellant argues that the court erred in determining that the State would have been allowed

to question him about his criminal history if he had taken the stand because the evidence

would be more prejudicial than probative under Rule 404(b) of the Arkansas Rules of

Evidence. It was his own counsel who elicited information from Hunter about the possible

prison relationship between Fells and appellant, albeit unintentionally; the State did not pursue

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the line of questioning with Hunter; appellant’s counsel did not at any time mention to the

trial court either Rule 404(b) or argue that the testimony would be more prejudicial than

probative; appellant made no specific argument to the court regarding the nature of the

criminal history; and appellant did not take the stand. See Riley v. State, 2012 Ark. 462

(holding that a party cannot enlarge or change the grounds for an objection on appeal, but is

bound by the scope and nature of the arguments made at trial and that an argument is not

preserved for appellate review unless the trial court rules on the specific objection raised by

appellant).

III.

Finally, appellant contends that the trial court denied him his Sixth Amendment right

to his choice of counsel. Although a defendant’s right to counsel of choice is constitutionally

guaranteed, the right to counsel of one’s choosing is not absolute and may not be used to

frustrate the inherent power of the court to command an orderly, efficient, and effective

administration of justice. Bullock v. State, 353 Ark. 577, 582, 111 S.W.3d 380, 384 (2003).

Moreover, once competent counsel is obtained, any request for a change in counsel must be

considered in the context of the public’s interest in the prompt dispensation of justice. Id.

Additionally, once an appellant has accepted representation by an attorney, the fact that he is

dissatisfied with his counsel’s efforts does not entitle him to appointment of a different

attorney. Id.

In this case, in a hearing on March 7, 2012, appellant informed the court that he would

hire an attorney with the help of his family, and the court gave him an additional month to

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accomplish this. On April 9, 2012, appellant appeared in court without an attorney, stating

that he had not been able to talk with an attorney and that he did not have income or

property to sell to pay for one. The court then appointed in succession two public defenders

who withdrew for conflict reasons. Finally, Efram Neely was appointed on August 3, 2012.

Appellant’s trial date was continued several times at his request, but appellant did not ask for

new counsel or express a desire to hire private counsel. Two days before trial, on June 17,

2013, the following exchange occurred:

THE COURT: Okay, Mr. Thomas, would you stand up and tell me what the—is
what’s going on. You want to—I—we appointed you—stand up for me so you can
answer my questions. We appointed you the Office of Public Defender, and Mr.
Neely has been assigned to your case. The Court is—is he correct in stating that you’re
wanting to find your own attorney?

APPELLANT: Yes, Your Honor.

THE COURT: Okay. Well, of course, you can always hire your own attorney. The
problem is, I don’t think you’d be able to hire someone who would be ready to go to
trial when we’re going to start this case, which is Wednesday, I believe.

Now if you’re saying you want a new public defender, well, the Court does not assign
a particular attorney to a case. The Public Defenders Commission assigns attorneys,
and so I would not exchange Mr. Neely for another public defender.

APPELLANT: He don’t even want to—he don’t even want to do my case. Why—why
do I got to go to trial with him?

THE COURT: Well, because that’s who they have assigned your case to. He is, I guess,
a conflicts attorney with the Public Defenders Commission. So I’m sure he’s—is
willing to take your case to trial. He has already told us he’s willing and ready to go.
So—

MR. NEELY: Your Honor, on the previous hearing, we talked about affidavits. Mr.—
we have done everything we’re supposed to do. We have filed an affidavit. We have
got service on his witness that he reports. We have filed all appropriate motions. We
went through discovery. We have provided Mr. Thomas with discovery. We have

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told Mr. Thomas the pros and cons. He knows the extent of the possible punishment
for what he is charged with. He knows the—the difference between what the plea
offer and what he is facing in a trial. We have explained all this to Mr. Thomas.

And—and the only thing we have done is let Mr. Thomas make his decision after
completely informing him of the pros and cons of going to trial with—with the
evidence and—pleading. And that is all that counsel has done at this point.

I am—I will be prepared—I am prepared to proceed in the trial if that is what Mr.
Thomas desires. But I have explained to Mr. Thomas through the evidence, you
know, just where we are with a trial. And that is just for the record purposes.

THE COURT: Okay. And usually, from my experience, Mr.Thomas, is the reason
many defendants are not happy with their defense attorney is that they haven’t gotten
the plea offer that they would prefer. But I want to explain to you that plea offers are
within the decision-making power of the prosecuting attorney. And the—whatever
they have offered you, if you don’t want to accept that, then that is well within your
rights and you can say, No, I don’t want to take that, and we’ll go to trial.

But your—neither your attorney nor I have the authority to tell the State, Well, I’m
sorry; you need to do better than this. I mean, that’s just not how it works.

So I see what—what the State has offered you. I’ve been given a copy of that. And if
that—apparently, a total of 25 years in the Department of Correction. And if that is
not what you want, say no, and we’ll have a jury called in and we will take it to a jury
and see what a jury decides. First, whether or not you’re even guilty. And if they find
you guilty of something, what they would recommend and suggest as your sentence.
Okay?

Anything—what else do you need to tell me?

APPELLANT: I just want to say I don’t want to go with him and I don’t want—I don’t
want to take that.

Although appellant technically neither moved to relieve his counsel nor to continue

the case, we will uphold rulings on both of those motions in the absence of an abuse of

discretion. Bullock, 353 Ark. at 581, 111 S.W.3d at 383; Smith v. State, 2012 Ark. App. 613.

On appeal, appellant contends that we should treat his request for change of counsel as a

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motion for continuance. An appellant must also demonstrate that, as a result of the ruling on

the motion for a continuance, he suffered prejudice that amounts to a denial of justice. Smith,

2012 Ark. App. 613, at 3. When a motion for continuance has been denied and there is an

issue of denial of the right to counsel, the issue must be decided on a case-by-case basis.

Thorne v. State, 269 Ark. 556, 561, 601 S.W.2d 886, 889 (1980). Factors that a trial court may

consider when ruling on a request for a continuance to obtain a new attorney include the

reasons for the change, whether counsel has been identified, whether the defendant has been

diligent in seeking the change, and whether any prejudice is likely to result to the defendant

if the motion is denied. Smith, 2012 Ark. App. 613, at 3.

In this case, the only reason apparent from the record that appellant wanted a new

attorney is that he did not like the plea offered. He gave no other reason. In addition,

appellant was provided ample opportunity—over a year—to secure his own counsel but did

not. Moreover, he did not alert the court to his desire until two days before trial after several

continuances. This was over a year after he first told the court he would obtain private

counsel and then indicated that he had no money to do so. Finally, when he informed the

court that he did not want Mr. Neely to represent him, he had not identified anyone to

replace him. Indeed, he did not indicate that he was attempting to find new counsel. He

merely stated that he did not like Mr. Neely. His right to his choice of counsel may not be

used to frustrate the inherent power of the court to command an orderly, efficient, and

effective administration of justice. The court balanced appellant’s right to different counsel

with its own need to efficiently administer justice. We hold that appellant’s dissatisfaction with

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his lawyer was not a violation of his Sixth Amendment right to counsel and that the trial court

did not abuse its discretion.

Affirmed.

WHITEAKER and VAUGHT, JJ., agree.

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

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

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