Starling v. State, CR–14–972

480 S.W.3d 158

Serandon Starling, Appellant

v.State of Arkansas, Appellee.

No. CR–14–972

Supreme Court of Arkansas.

Opinion Delivered January 28, 2016

Phillip A. McGough, P.A., North Little Rock, by: Phillip A. McGough, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

HOWARD W. BRILL, Chief Justice

Appellant Serandon Starling appeals from the sentencing order entered by the Miller County Circuit Court reflecting his convictions and sentences for first-degree murder and committing a terroristic act. Each offense was enhanced for employing a firearm, and Starling was sentenced as a habitual offender to a total term of life imprisonment plus fifteen years.¹ The attorney appointed to represent appellant on appeal has filed a motion to withdraw as counsel and a no–merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Arkansas Supreme Court Rule 4–3(k) (2015), asserting that the appeal is without merit. In accordance with Rule 4–3(k)(2), our clerk furnished appellant with a copy of the brief. Appellant submitted two pro se points for reversal, and the State has responded. Because appellant received a sentence of life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2015). We find no reversible error and, therefore, affirm appellant's convictions and grant counsel's motion to withdraw.

I. Facts

The following facts are adduced from the testimony and evidence presented at trial. On April 18, 2013, Demetrica Satterwhite contacted Frank Starling, appellant's brother ("Frank"), and told him that Billy "Wild Bill" Hawkins, was interested in buying some crack cocaine from him. According to Satterwhite, Wild Bill planned to sell the drugs to some men from Ashdown. Satterwhite drove Frank, Wild Bill, and Aundrey Battle to a local McDonald's, where she saw her cousin, Andrew "P.J." Cheatham. Satterwhite got out of her car and went over to P.J.'s car to talk to him; Wild Bill, who had possession of the drugs, followed her. Wild Bill then got in P.J.'s car, and the two of them drove off together.

Frank became angry when Wild Bill left with the drugs without paying for them and accused Satterwhite of setting him up to get robbed. According to Satterwhite, Frank forced her to drive Battle and him around town to look for P.J. and Wild Bill. During the pursuit of P.J. and Wild Bill, Satterwhite stopped at Frank's house and picked up Justin Benton. She then drove to Brittany Baker's house, where she saw a gold car parked outside, and picked up Khyia Primm and Quanissa Johnson. Satterwhite, Frank, and the others stopped for gas at a local convenience store, where Satterwhite said she saw the gold car again. Satterwhite went into the store and saw appellant, whom she did not know. Satterwhite testified that appellant identified himself as Serandon and that she later learned that he was in the gold car.

Satterwhite walked out of the store, and one of her passengers saw P.J. drive by, so Satterwhite and the driver of the gold car started following P.J.'s car. Satterwhite testified that the driver of the gold car blocked off P.J.'s car on a side street and that she pulled up behind P.J.'s car. Appellant got out of the gold car and went to P.J.'s car. Appellant shot at P.J.'s vehicle, and one of the bullets struck P.J. in the forehead, killing him.

II. Adverse Rulings

A. Directed Verdict—Credibility

Counsel contends that the circuit court did not err in denying appellant's motions for directed verdict. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. E.g., Anderson v. State, 2011 Ark. 461, at 3, 385 S.W.3d 214, 217. This court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id., 385 S.W.3d at 218. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id., 385 S.W.3d at 218. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 218.

A person commits first-degree murder if "[w]ith a purpose of causing the death of another person, the person causes the death of another person." Ark.Code Ann. § 5–10–102(a)(2) (Repl.2013). "A person commits a terroristic act if, while not in the commission of a lawful act, the person [s]hoots at or in any manner projects an object at a conveyance which is being operated or which is occupied by another person with the purpose to cause injury to another person or damage to property." Ark.Code Ann. § 5–13–310(a)(1) (Repl. 2013). "A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result." Ark.Code Ann. § 5–2–202(1) (Repl.2013).

At trial, appellant moved for a directed verdict, contending that the State had presented no credible evidence to maintain the charges. Specifically, appellant argued,

[W]e note the lack of credibility of witnesses due to their prior inconsistent statements and motives to lie based on their testimony here in court and the fact that they had charges pending or wanted to avoid having charges brought at all against them.

The State responded,

I would ask the court to recall the testimony of the witnesses, specifically not only the law enforcement officers, but Demetrica Satterwhite, Phillip Blackwell, Shae Jones, and Justin Benton who were all present at the time this shooting occurred.

Demetrica Satterwhite specifically testified that it was Serandon Starling who fired the gun that killed P.J. Phillip Blackwell specifically stated that it was Serandon Starling that fired the weapon. Shae Jones specifically stated that Serandon Starling had a weapon that he produced from his waistband when he got out of the car and she saw him with it again when he returned to the car. And Justin Benton stated that he saw Serandon Starling retrieve a gun from his Camero [sic] before getting into the car. He always carried a .45 and that he specifically recalled Serandon Starling shooting that .45 striking P.J.'s car.

The bullet that was recovered from P.J.'s head was a .45 which can be directly linked back to the gun that Mr. Starling possessed and shot.

Regarding their motive to testify, there are ... no charges pending against Shae Jones nor has there been any indication to her by the State that any charges would be brought. Mr. Benton currently has charges pending and no agreements have been made by the State with Mr. Benton. Demetrica Satterwhite has charges pending and she specifically testified under oath that no promises have been made to her by the State in exchange for her testimony. No plea bargains have been made by the State, with the State in exchange for her testimony.

Variances and discrepancies in the proof go to the weight or credibility of the evidence and matters for the fact-finder to resolve. Marts v. State, 332 Ark. 628, 644, 968 S.W.2d 41, 49 (1998). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. E.g., Burley v. State, 348 Ark. 422, 430, 73 S.W.3d 600, 605 (2002). Accordingly, when there is evidence of a defendant's guilt, even if it is conflicting, it is for the jury as fact-finder to resolve any conflicts and inconsistencies; it is not for the court to resolve on a directed-verdict motion. Marts, 332 Ark. at 644, 968 S.W.2d at 49 ; see also State v. Long, 311 Ark. 248, 251, 844 S.W.2d 302, 304 (1992) (stating that "when a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction").

In his directed-verdict motions, appellant did not specify which witnesses gave inconsistent prior statements, which witnesses were motivated to lie because they had charges pending, or which witnesses wanted to avoid charges. Nevertheless, we conclude that, through the testimony and evidence presented at trial, the jury was apprised of the witnesses' involvement in the crime.

Moreover, the jury heard testimony regarding whether witnesses had pending charges. Satterwhite and Phillip Blackwell, who was a passenger in the gold car, testified that appellant shot at P.J.'s vehicle. Satterwhite testified that she was incarcerated in the Miller County Sheriff's Department with a charge pending for first-degree murder. She stated that she was testifying for the State but that the State had made her no promises and that she had not received a plea deal for her testimony. Shae Jones, appellant's girlfriend, testified that she was with appellant at the time of the murder, that appellant had a weapon that he produced from his pocket when he got out of the car, and that she saw him with the gun when he returned to the car. Justin Benton testified that he saw appellant shoot at P.J. Benton also testified that he faced criminal charges for hindering apprehension in connection with the murder.

The jury has the sole authority to evaluate the credibility of evidence and to apportion the weight to be given to the evidence. E.g., S m oak v. State, 2011 Ark. 529, at 6, 385 S.W.3d 257, 261. Viewing the evidence in the light most favorable to the verdict, we conclude that it was reasonable for the jury to infer from the circumstances that appellant committed the offenses of first-degree murder and terroristic act. We hold that the circuit court did not err in denying appellant's motions for directed verdict.

B. Jury Instruction—Reckless Manslaughter

At trial, the circuit court instructed the jury on first-degree murder and the lesser-included offense of second-degree murder and refused appellant's request to instruct the jury on the lesser-included offense of reckless manslaughter. We have often stated that refusal...