Wells v. State

Cite as 2013 Ark. 389

SUPREME COURT OF ARKANSAS
No. CR-13-122

TIMOTHY ALLEN WELLS Opinion Delivered October 10, 2013
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT,
[NO. CR-2010-468-1]

STATE OF ARKANSAS HONORABLE JOHN HOMER
APPELLEE WRIGHT, JUDGE

AFFIRMED.

JIM HANNAH, Chief Justice

Appellant, Timothy Allen Wells, was convicted of capital murder in furtherance of

aggravated robbery and was sentenced to a term of life imprisonment. The conviction arose

as a result of the shooting death of Madhuben Patel, the owner of a motel in Hot Springs.

On appeal, Wells contends that (1) there was insufficient evidence that Patel’s murder was

committed during the course and furtherance of an aggravated robbery, and (2) the circuit

court erred when it refused to allow the jury to determine the accomplice status of Jason

Smith. Because this is a criminal appeal in which a sentence of life imprisonment has been

imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2013). We

affirm the circuit court.

On February 13, 2010, Wells and Smith stopped by Gene’s Liquor Store in Malvern,

where they attempted to cash a forged check in the amount of $2700, using Smith’s name

and identification. Dwayne Wright, the night manager at the liquor store, testified that he
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had known Wells for many years and recognized him when he came into the store. Wright

stated that he refused to cash the check because “[t]he check had been . . . scribbled over

whoever’s name it was, and it was just that amount of check on a weekend from another

town.” According to Wright, when Wells left the liquor store, he was driving a Pontiac G-6.

After Wells failed to obtain money at the liquor store, he told Smith that he could get money

in Hot Springs. With Smith as his passenger, Wells drove to Hot Springs and stopped in an

alley by the Lynwood Motel. Armed with a gun, Wells then entered the motel and shot Patel

inside the motel’s office. Terrell Alan Kuykendall and Steven Hasley were at the Shell

Superstop across from the motel at the time of the murder. After hearing a loud noise and

a woman’s scream, Kuykendall and Hasley saw a man leaving the motel. They followed the

man—who was driving a Pontiac G-6—in an attempt to obtain his license-plate number, but

they were unsuccessful.

Wells confessed to investigators that he had murdered Patel at the Lynwood Motel.

In his confession, which was read to the jury and admitted into evidence, Wells stated,

Man, I lost my mind the other day in Hot Springs. I blanked out. I’m bipolar and
sometimes I flip out and go in a rage. I remember going in that building and a man
and lady started screaming at me. My bipolar acted up and I just shot. Anybody could
have been hurt that day in Hot Springs, I was ready to go in a rampage. Jason said that
he couldn’t believe the way I was acting. I remember going to the liquor store to cash
the check. I was OK there. I remember going to Hot Springs and parking the car. I
remember getting out and running into the little building. Jason was yelling at me and
I told him to shut the fuck up and I just kept going. In the store, these Arabian or
Indian people were yelling at me and I just shot. They were inside the building. That
day anyone could have got hurt. I was ready to kill somebody or kill myself. I didn’t
know the lady in Hot Springs had died. I threw the gun out the passenger’s side
window between Malvern and Hot Springs. It was between the Reynolds plant and
before the Rainbow Mart. I’m glad they stopped me; I need some help.

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Wells’s friend, David Hughes, testified that, on the night of the murder, Wells

admitted to him that he had shot somebody. Wells drove to Hughes’s residence shortly after

the murder. According to Hughes, Wells was driving a Pontiac G-6 that night.

Although Wells confessed to killing Patel, he contends that there was insufficient

evidence that he had committed the underlying felony offense of aggravated robbery. The

test for determining the sufficiency of the evidence is whether the verdict is supported by

substantial evidence. See, e.g., Huff v. State, 2012 Ark. 388, ___ S.W.3d ___. Substantial

evidence is evidence that is forceful enough to compel a conclusion one way or the other

beyond suspicion or conjecture. E.g., Stevenson v. State, 2013 Ark. 100, ___ S.W.3d ___. On

review, only evidence that supports the verdict is considered, and the evidence is viewed in

the light most favorable to the verdict. Id.

Circumstantial evidence may constitute substantial evidence to support a conviction.

E.g., Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164. To be substantial, the evidence must

exclude every other reasonable hypothesis than that of guilt of the accused. Id. The question

of whether circumstantial evidence excludes every other reasonable hypothesis consistent

with innocence is for the jury to decide. Id.

Under the felony-murder statute, a defendant need only have the requisite intent to

commit the underlying felony, here aggravated robbery, and not the intent to commit

murder. See, e.g., Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Therefore, the

elements required to sustain the conviction in this case are that Wells committed aggravated

robbery, and, in the course of or in immediate flight therefrom, he caused the death of

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another person under circumstances manifesting extreme indifference to the value of human

life. See Ark. Code Ann. § 5-10-101 (Supp. 2009). A person commits aggravated robbery if

he or she commits robbery as defined in Arkansas Code Annotated section 5-12-102,1 and

the person (1) is armed with a deadly weapon, (2) represents by word or conduct that he or

she is armed with a deadly weapon, or (3) inflicts or attempts to inflict death or serious

physical injury upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2006).

Wells maintains that there is insufficient evidence that Patel’s murder was committed

during the course and furtherance of an aggravated robbery because proof that Wells was

attempting to rob the motel was based on the inconsistent testimony of Smith. Smith testified

at trial that, when Wells told him that he could get money in Hot Springs, he first thought

Wells might have some family members at the motel who would give him money, but he

later concluded that Wells intended to rob the motel. Smith testified that he remembered

telling police that he thought Wells was going to rob the motel and that he tried to talk him

out of it. Then, Smith testified that Wells “didn’t tell me he was gonna rob it,” and later,

during cross-examination, Smith testified that he was not sure if Wells had stated that “he

was going to rob the place.” During redirect examination, Smith stated that, when he

thought Wells was going to rob the motel, he tried to talk Wells out of it, but Wells told him

to “shut the fuck up.”

1
A person commits robbery if, with the purpose of committing a felony or
misdemeanor theft or resisting apprehension immediately after committing a felony or
misdemeanor theft, the person employs or threatens to immediately employ physical force
upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2006).

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The State contends that it is of no moment whether Wells actually uttered the word

“rob” when he told Smith he could get some money in Hot Springs. Further, the State

points out that there was no evidence demonstrating that Wells knew Patel or that she was

willing to give Wells any money. Finally, the State asserts that the evidence shows that Wells

took a gun with him into Patel’s place of business. The State contends that, in view of the

evidence adduced at trial, it is beyond speculation and conjecture that Wells entered the

Lynwood Motel with the intention of using deadly force to accomplish his stated purpose

of obtaining money and that he shot and killed Patel in the course and furtherance of an

aggravated robbery.

We agree, and we hold that there was substantial evidence to support the jury’s

verdict. Moreover, whatever contradictions, conflicts, and inconsistencies there were in

Smith’s testimony were for the jury to resolve, and it could credit those parts of his testimony

they believed to be true and disregard those they believed to be false. E.g., Abdullah v. State,

301 Ark. 235, 783 S.W.2d 58 (1990); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889

(1974).

Wells next contends that the circuit court erred when it refused to instruct the jury

that it could find that Smith was an accomplice so that Smith’s testimony would require

corroboration. The circuit court declined to instruct the jury with the disputed-accomplice

liability instruction, AMI Crim. 2d 403, concluding that there was insufficient evidence to

support the instruction. On appeal, Wells maintains that there were facts from which a jury

could have found that Smith was an accomplice. Specifically, Wells points to the following

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evidence: (1) Smith agreed to help Wells cash a stolen check and thus demonstrated his

willingness to commit a crime, (2) Smith remained in the car after he became aware that

Wells was going to rob the motel, (3) Smith aided Wells during his flight from the crime

scene, and (4) Smith did not go to the police. The State contends that the circuit court did

not abuse its discretion in refusing to give the requested instruction because there is no

evidence that Smith took part in planning the robbery, or that he otherwise encouraged or

aided in its commission.

The appellant bears the burden of proving that a witness is an accomplice whose

testimony must be corroborated. E.g., Taylor v. State, 2010 Ark. 372, 372 S.W.3d 769. A

defendant must either have the circuit court declare a witness to be an accomplice as a matter

of law or have it submit the issue to the jury for determination. Id. A witness’s status as an

accomplice is a mixed question of law and fact. Id. When the facts show conclusively that

the witness is an accomplice, the issue may be decided as a matter of law. Id. When the

accomplice status instead presents issues of fact, the question is submitted to the jury. Id.

A party is entitled to an instruction if there is sufficient evidence to raise a question

of fact or if there is any supporting evidence for the instruction. E.g., Hickman v. State, 372

Ark. 438, 277 S.W.3d 217 (2008). There is no error in refusing to give an instruction when

there is no basis in evidence to support the giving of the instruction. Id. A circuit court’s

ruling on whether to submit a jury instruction will not be reversed absent an abuse of

discretion. E.g., Taylor, supra.

In this case, Wells sought to have the jury instructed according to AMI Crim. 2d 403:

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A person cannot be convicted of a felony upon the uncorroborated testimony of an
accomplice.

[An accomplice is one (who directly participates in the commission of an offense or)
who, with the purpose of promoting or facilitating the commission of an offense:

(Solicits, advises, encourages or coerces another person to commit it;) (or)

(Aids, agrees to aid, or attempts to aid another person in planning or committing it;)
(or)

(Having a legal duty to prevent the commission of the offense, fails to make a proper
effort to do so.) ]

It is contended that the witness[es] __________ (name(s)) [was] [were] [an]
accomplice(s). If you find that [he was] [they were], then __________ (defendant(s))
cannot be convicted of __________ (felony(s) being submitted) upon testimony of
[that] [those] witness[es], unless that testimony is corroborated by other evidence
tending to connect __________ (defendant(s)) with the commission of the offense(s).
Evidence is not sufficient to corroborate the testimony of an accomplice if it merely
shows that the offense(s) [was] [were] committed and the circumstances of the
commission. [The testimony of one accomplice is not alone sufficient to corroborate
the testimony of another accomplice.] The sufficiency of the corroborating evidence
is for you to determine.

[You may, however, convict (the)(a) defendant of __________ ( misdemeanor ) upon
the uncorroborated testimony of an accomplice, because that offense is only a
misdemeanor.]

AMI Crim. 2d 403.

Having reviewed the record, we hold that even if there were any evidence to support

the giving of the instruction, Wells has not demonstrated that he was prejudiced by the

circuit court’s failure to give the instruction because Smith’s testimony was sufficiently

corroborated by other evidence. See Hickman, supra. Corroborating evidence need not

establish each element of an offense or corroborate every detail of the accomplice testimony.

E.g., Taylor, supra. It must be evidence of a substantive nature since it must be directed

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toward proving the connection of the accused with a crime and not toward corroborating

the accomplice testimony. Id. The corroborating evidence need not be sufficient standing

alone to sustain the conviction, but it must, independent from that of the accomplice, tend

to connect to a substantial degree the accused with the commission of the crime. Id. The test

is whether, if the testimony of the accomplice were completely eliminated from the case, the

other evidence would independently establish the crime and tend to connect the accused

with its commission. Id.

Here, Wells confessed to investigators that he had killed Patel at the Lynwood Motel.

Wells’s friend, David Hughes, testified that, on the night of the murder, Wells admitted to

him that he had shot somebody. The testimony of Dwayne Wright, the night manager at the

liquor store, established that, on the night of the murder, Wells sought a large sum of money

but was unable to obtain the money when Wright refused to cash a forged check. Wright

testified that when Wells left the liquor store he was driving a Pontiac G-6, which was the

same car chased by Kuykendall and Hasley immediately following Patel’s murder and the

same car that was driven to Hughes’s residence after the crimes had been committed.

Therefore, if Smith’s testimony had been eliminated from the case, Wells’s confession and

the evidence surrounding the commission of the murder would have independently

established that Wells killed Patel during the course of an aggravated robbery. Accordingly,

even if the circuit court’s failure to instruct the jury on disputed-accomplice liability was

error, it was harmless, and this court does not reverse for harmless error. See Hickman, supra

(noting that we will not presume prejudice when error is alleged and that an appellant must

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show prejudice because we do not reverse for harmless error).

In compliance with Arkansas Supreme Court Rule 4-3(i) (2013), the record has been

examined for all objections, motions, and requests made by either party that were decided

adversely to Wells, and no prejudicial error has been found.

Affirmed.

BAKER and HART, JJ., dissent.

JOSEPHINE LINKER HART, Justice, dissenting. Under our standard of review, we

review all the evidence, even that improperly admitted and based on that standard, I agree that

there is substantial evidence to support the jury’s verdict. However, I believe that this case

should be reversed because the circuit court abused its discretion in refusing to submit to the

jury the accomplice-testimony instruction, AMI Crim. 2d 403. The majority’s use of dicta

from Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008), to forge a new procedural

template for harmless-error analysis without first determining whether the trial court erred in

finding that there was no evidence of accomplice liability is contrary to law and compromises

an accused person’s right to a fair trial. In Hickman, we upheld a trial court’s finding that there

was no evidence to support giving the accomplice-testimony instruction. Here, the trial

court’s erroneously concluded that there was no evidence to support giving the instruction.

That error should not be upheld.

A party is entitled to a jury instruction if there is any supporting evidence for the

instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003) (citing Henderson v. State,

349 Ark. 701, 80 S.W.3d 374 (2002)). In pertinent part, to be defined as an accomplice to

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the commission of a crime under our criminal code, that person must, with the purpose of

promoting or facilitating that offense, aid, agrees to aid, or attempts to aid the other person

in planning or committing it. Ark. Code Ann. § 5-2-403 (Repl. 2006). Relevant factors in

determining the connection of an accomplice with the crime include the presence of the

witness in the proximity of a crime, opportunity, and association with a person involved in

a crime in a manner suggestive of joint participation. Parker v. State, 355 Ark. 639, 144

S.W.3d 270 (2004).

Here, there was evidence that Jason Smith helped Wells in his flight from the crime

by pushing the getaway car after it got stuck. This evidence alone justifies giving the AMI

Crim. 2d 403 instruction. See Jackson v. State, 193 Ark. 776, 102 S.W.2d 546 (1937)

(evidence showing a witness was present, had knowledge of the crime that had been

committed, and had protected the perpetrator was sufficient to require giving the jury the

accomplice-testimony instruction). The trial court’s failure to give that instruction was error.

King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). Additionally, there was evidence that

Wells had earlier accompanied Smith when he attempted to cash a forged check in another

county. While Smith did not accompany Wells into the motel, an associate need not

participate in every aspect of the crime to be found an accomplice. See Meadows v. State, 2012

Ark. 57, 386 S.W.3d 470. Given Smith’s assistance in getting away from the scene of the

murder, his proximity to the murder, and his evening-long association with Wells in a quest

for money, a reasonable jury could find that there was joint participation. Accordingly, in my

view, the trial court abused its discretion in refusing to give the AMI Crim. 2d 403

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instruction.

Only after trial court error has been found is it permissible to proceed to harmless-error

analysis. Yet, in relying on Hickman, supra, the majority is omitting this essential first step.

This omission is significant, because the majority goes on to review evidence that the jury was

never asked to evaluate in the context of whether it provides corroboration of accomplice

testimony and concludes that it was sufficient. Such a conclusion would be warranted if the

issue on appeal was whether there was sufficient corroboration of accomplice-witness

testimony. In that situation the jury has already passed on the question and made its

credibility calls. Accordingly, it is proper when we view the evidence in the light most

favorable to the jury’s decision. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994). Here,

the jury made no such decision. Therefore the majority’s conclusion that Smith’s testimony

was sufficiently corroborated impermissibly invades the exclusive province of the jury. The

majority is making credibility calls on a cold record to support finding its own facts.

In performing harmless-error analysis, we eliminate from the analysis all of Smith’s

testimony and determine whether there is evidence that tends to connect Wells with the

commission of the offense. Ark. Code Ann. § 16-89-111(e)(1)(A) (Repl. 2005). However,

after doing so, there is no evidence to establish the underlying felony—robbery of the motel.

The majority’s recitation of the facts shows how crucial Smith’s testimony was to the State’s

case. Indeed, not even the crime-scene photos suggested that anything had been disturbed,

much less stolen. Wells’s confession only provides evidence that he committed the murder.

Accordingly, the circuit court’s error was not harmless, and this case must be remanded for

a new trial.
Baker, J., joins.
Charles D. Hancock, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.

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