Webb v. State, CA CR 07-948 (Ark. App. 9/24/2008), CA CR 07-948

Page 1

Lakeela WEBB, Appellant v. STATE of Arkansas, Appellee

CA CR 07-948

Court of Appeals of Arkansas

Division I

Opinion Delivered September 24, 2008

Appeal from the Pulaski County Circuit Court, Fourth Division [CR 05-3424]; Honorable John W. Langston, Judge.

Reversed and Remanded.

DAVID M. GLOVER, Judge.

LaKeela Webb was convicted by a Pulaski County jury of the offenses of negligent homicide and second-degree endangering the welfare of a minor in connection with the death of her two-month-old son, Jayce Burks. She was sentenced to one year in the county jail on each offense, to be served concurrently, and she was also fined $1,000 for the endangering-the-welfare-of-a-minor conviction. Webb raises six issues on appeal. She argues that the trial court erred in denying (1) her motion for directed verdict on the charge of negligent homicide; (2) her motion for directed verdict on the charge of endangering the welfare of a minor in the second degree; (3) her motion to suppress evidence; (4) her motion to dismiss the endangering charge on the basis that it was filed outside the statute of limitations; (5) her motion to dismiss the endangering charge on the basis that she was not given a speedy trial; and (6) her motion to dismiss the endangering charge on the basis of violation of her due-process rights. We find her third argument, that the trial court erred in denying her motion to suppress evidence, to be persuasive, and we reverse and remand this case for a new trial.

Jayce Burks was born on March 4, 2005, and he died on May 7, 2005. Webb was originally charged with manslaughter and was tried in August 2006; that trial ended in a mistrial. After the mistrial, the State amended the information to add the offense of second-degree endangering the welfare of a minor. Webb was tried on June 6, 2007, for the offenses of manslaughter and second-degree endangering the welfare of a minor; she was convicted of negligent homicide and of the endangering charge.

Webb told several versions of the circumstances surrounding Jayce's death to different people. James Burks, Jayce's father, testified that on May 7, 2005, he and Webb had taken Jayce to the doctor for a checkup and there were no problems. Burks said that Webb called him later that night and told him that she was going out for a "First Friday" party, and they were supposed to "hook up" later that evening. Webb called Burks later that night, and although he offered to go to Webb's house, she told him that she wanted to "get a room," so he gave her money to get a hotel room. He said that Webb was drunk when he talked to her; that she came to get the money from him between 2 and 3 a.m.; that he arrived at the hotel around 3 a.m.; and that Webb was waiting on him when he arrived. He also testified that Webb told him Jayce was with her mother; that they stayed all night at the hotel; and that the maid woke them up around 12:45 p.m. that next day. Further, according to Burks, Webb told him that she had to go get Jayce when they woke up, but that she did not seem in a panic. Burks testified that later, when Webb called him to inform him that Jayce had died, she told him that she had done something really bad and that she was sorry — that she had left Jayce at the house the whole time she was gone and that when she got back to the house, there was a bag over his face and he was not breathing. Burks related that when he visited Webb at her house in Maumelle, Jayce would sleep with him or in a bassinet; he said that Jayce rarely slept in the baby bed, that Webb basically used it for storage.

Cheryl Rutledge, Jayce's grandmother, testified that Webb had asked her to babysit Jayce on the weekend of May 7, 2005, but she told Webb that she would be out of town that weekend. Rutledge said that when she arrived at Webb's house after learning of Jayce's death, Webb was in bed and kept stating that she was sorry, that she thought he would be all right. Rutledge also stated that at the graveside service, Webb hugged her and told her that she was sorry and asked that she please forgive her.

Brittany Robinson testified that she was at Webb's mother's house in Sherwood on May 7, 2005, when Webb arrived with Jayce in her arms. Robinson said that there was "no life" in Jayce; that he had blood on his face; and that Webb said that a plastic bag had "flown over his face." In her written statement to the police, Robinson reiterated that Webb had stated that Jayce had suffocated from a plastic bag.

Officer Scott Hicks of the Sherwood Police Department testified that he responded to Webb's mother's address in Sherwood, where he observed Webb leaving the house. When he stopped her, she was crying and asked him to please help her, that her baby was having difficulty breathing, that he was not breathing. Initially, Webb told Hicks that she had put Jayce down for a nap and when she returned a few seconds later, she found him with a bag over his face. When Hicks continued to question her, Webb said that it was a longer period of time, maybe fifteen or twenty minutes, and then the time period became nearly an hour.

Officer Chris Cone of the Sherwood Police Department testified that he investigated Jayce's death, and in the course of the investigation, he had spoken with Webb, who initially told him that she had left the night before around 10 p.m. and had returned on Saturday morning around 9 a.m., and that when she arrived home, Jayce was in his crib, awake and crying. Webb said that she gave Jayce his pacifier and left the room, and when she came back into the room around 12:30 p.m., she found him motionless in the bed with a plastic bag on his face. Cone testified that he noticed one significant difference in what Webb told him and what he heard her say when she spoke with Deputy Coroner Garland Camper — she told Camper that she had left Jayce with her sister the night before. Noting this discrepancy, Cone read Webb her Miranda rights, and she then told him that she had left her house the night before around 10 p.m., leaving Jayce home alone, met Jayce's father at a club, and then went to a motel with him before returning to her house around noon on May 7. Webb told Cone that she found Jayce awake and crying in his bed when she returned home, and that she gave him his pacifier and left the room; but when she returned about forty-five minutes later, she found Jayce lying motionless in the bed with a plastic bag across his face. Webb told Cone that the ceiling fan was on in the room, and that she supposed it blew the bag onto his face. Webb told Cone that the bag was a small plastic trash bag, and that she kept several of them in the crib, as well as clothing.

Dr. Daniel Konzelman, the medical examiner who performed Jayce's autopsy, testified that he was not able to determine a cause of death because he did not find an obvious cause. He said that he was suspicious that the death might have been caused by asphyxia, but that there were no findings in the autopsy that would lend credence to that. However, he said that suffocation did not always leave evidence, and that it would not take much force to suffocate a fairly weak infant. Konzelman said that while there was some indication of blood coming out of Jayce's nose or mouth, it was not technically blood but more of a red watery mixture that had some blood mixture in it that appeared to be consistent with fluid coming up from the lungs after death. However, Konzelman said that the fluid, which was determined to be Jayce's, was not an indication of suffocation. Konzelman also testified that in his opinion, Jayce did not die of SIDS, as there were circumstances of death that left questions about whether it was a natural death; that he could not rule out suffocation as a cause of death, but could not say with any degree of medical certainty that suffocation was the cause of death; and that he could not say it was a homicide, an accidental death, or a death from natural causes.

I. & II. Sufficiency of the Evidence Webb's first two points deal with the sufficiency of the evidence to support her convictions. In Williams v. State, 363 Ark. 395, 401, 214 S.W.3d 829, 832 (2005) (citations omitted), our supreme court held:

[A]n appellant's right to be free from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Additionally, when reviewing a challenge to the sufficiency of the evidence, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State.

a. Negligent Homicide

A person commits negligent homicide if she "negligently causes the death of another person." Ark. Code Ann. § 5-10-105(b)(1) (Repl. 2006). A person acts negligently with respect to attendant circumstances or as a result of his of her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor. Ark. Code Ann. § 5-2-202(4) (Repl. 2006).

Webb argues that the State failed to satisfy the "corpus delicti rule," found at Arkansas Code Annotated...