TAYLOR v. STATE

crime are indicative of his guilt and can be used for corroborating the testimony of the accomplice. We affirm appellant's kidnapping conviction because there is sufficient evidence to corroborate Carter's testimony that appellant restrained the victim to the point of interfering with his liberty.

Appellant also argues that the State failed to prove sufficient evidence of premeditation and deliberation to support the capital-murder conviction. The State submitted to the jury two theories on which it could find appellant committed capital murder — felony murder and premeditated and deliberated murder. With regard to felony murder, a person commits capital murder if, acting alone or with another person, he commits or attempts to commit kidnapping, and in the course of and in furtherance of the kidnapping or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(1) (Repl. 2006). In addition, a person commits capital murder if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2006). Premeditation and deliberation may be formed in an instant. Marcyniuk v. State, 2010 Ark. 257, ___ S.W.3d ___. Intent can rarely be proven by direct evidence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. Id.

Because the capital-murder charge was submitted to the jury as a general verdict, the jury did not specify if it had found upon the basis of felony murder, premeditated and deliberated murder, or both. Moreover, appellant fails in his brief to challenge the sufficiency of the capital-murder conviction on the basis of felony murder. However, we will affirm a general verdict without regard to the State's proof on a particular element of a charge if there is sufficient evidence to convict on the alternative ground. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Thus, we may affirm the capital-murder conviction if there was sufficient evidence to prove appellant, with premeditation and deliberation, caused the death of the victim.

Sufficient evidence supports the jury's verdict on premeditated and deliberated capital murder. The majority of evidence to prove premeditation and deliberation is provided via accomplice testimony from Carter, but that testimony is corroborated by forensic evidence and testimony from other witnesses. The State established that appellant borrowed a truck from Carter on October 13, 2008, then dropped Carter off at Gus Bocksnick's house for several hours. Appellant went to the motel where his girlfriend, Christina Head, was staying and encountered the victim in the parking lot. Head testified that appellant and the victim left the motel in order to purchase drugs. Appellant returned to Bocksnick's house and borrowed a gun from Carter. Carter and Megan Crews heard appellant say he was going to kill someone. Appellant returned fifteen minutes later and picked up Carter, who saw the victim bound in the bed of the truck. Carter and appellant drove to Buster Logan's house, where the appellant picked up black electrical tape. Using the tape and a sock, appellant gagged the victim. Carter and appellant then drove approximately ten miles away to a wooded location. Carter testified that appellant held a gun on the victim during the drive. Once they arrived, appellant shot the victim twice in the head as he begged for his life. The two left the victim in the woods, and they drove back to Logan's house, where appellant obtained a flashlight and blanket. Returning to the murder site, appellant and Carter moved the body to another remote, wooded location. Next, they burned their clothes. Appellant then picked up his girlfriend, admitted to her that he had shot the victim, and moved to another motel. Head testified that she saw appellant cleaning out the truck. The truck was later returned missing a bed liner and the tailgate. Head testified that appellant asked her to provide him an alibi for the night of the incident and to implicate Carter as the shooter. Appellant wrote letters to Head while he was incarcerated where he encouraged her to "fix" what she told police.

Forensic evidence corroborates much of Carter's testimony — the victim was found in a remote, wooded area with two gunshot wounds to his head and black electrical tape with a sock was wrapped around his neck. The victim's blood was found on the bumper of the truck appellant was driving that night. Furthermore, appellant's DNA was found on a gun that could have fired the bullets recovered from the victim. Additionally, testimonial evidence supports the finding of premeditation and deliberation. Megan Crews corroborated that appellant stated he needed a gun to shoot someone. Head testified that appellant told her he shot the victim and showed her the gun he had used. Her description of the murder weapon was consistent with the gun that was recovered. Taken as a whole, the evidence is sufficient to prove appellant, with premeditation and deliberation, caused the death of the victim.

II. Co-Accomplice Liability

Appellant's third argument on appeal is that the circuit court erred in refusing to declare appellant's girlfriend as an accomplice and in refusing to instruct the jury that it could find she was an accomplice so that her testimony would require corroboration.

For an individual to be an accomplice, he must engage in one of the activities articulated in Ark. Code Ann. § 5-2-403 (Repl. 2006):

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:

(1) Solicits, advises, encourages, or coerces the other person to commit the offense;

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or

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

(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:

(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;

(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the particular result; or

(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.

Mere presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity to the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Raynor v. State, 343 Ark. 575, 36 S.W.3d 315 (2001).

The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Cook, supra. A defendant must either have the circuit court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). The law is well settled that a witness's status as an accomplice is a mixed question of law and fact. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002).

However, 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 facts, the question is submitted to the jury. Id. An instruction should only be excluded when there is no rational basis for giving it. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A circuit court's ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id.

We affirm on this point because the circuit court did not abuse its discretion in determining there was no rational basis for finding Christina Head was an accomplice. No facts were presented that she solicited, advised, encouraged, or coerced appellant to kidnap or murder the victim. There was no evidence that she aided or agreed to aid him in the planning or commission of the crime. In fact, there is no evidence to support that she knew about the crime until after it had been committed. No testimony or evidence suggests Head was at the crime scene. All incriminating actions by Head occurred after the crime was committed, such as assisting the appellant in moving to a different hotel and being present when he cleaned out the truck. At most, her actions establish that she was an accessory after the fact and possibly hindered the apprehension and prosecution of appellant. There is no evidence to support a finding of accomplice liability. Therefore, the circuit court did not abuse its discretion in refusing to find Head was an accomplice and in refusing to instruct the jury that it could do so.

III. Constitutionality of the Death Penalty

Appellant's next argument is that the circuit court erred by denying his pretrial motion to quash the criminal information, resulting in a violation of appellant's fourth, fifth, sixth, eighth, and fourteenth amendment rights. Specifically, he contends that the death penalty is, per se and as applied to him, cruel, unusual, and excessive punishment; that our state statutory capital punishment scheme is overly broad, vague, and allows for an arbitrary and capricious imposition of death; and that our state statutory capital punishment scheme is unconstitutional because it requires a mandatory imposition of death and lacks sufficient constitutionally required standards.

Appellant's assertions under this point are mostly public policy arguments against the death penalty, and he cites only one Arkansas case in support of his contentions. This court need not address an argument unsupported by citation to authority or convincing argument, and we could reject this argument for this reason alone. See Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). However, as to the merits of appellant's argument that the death penalty violates the Eighth Amendment's prohibition against cruel and unusual punishment, we have upheld the death penalty against this same argument many times. See Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). Appellant has provided no basis to reverse our precedent on this point.

Appellant also argues on appeal that the death penalty is unconstitutional as applied to his specific case. However, he failed to preserve this argument for our review. His motions to quash did not cover his "as applied" argument (those motions were filed before trial and the facts against him had not yet been established), and he failed to make a motion to that effect after the State rested or before the case was submitted to the jury. Rather, his directed-verdict motions focused on the sufficiency of the evidence. We do not address arguments raised for the first time on appeal. Even constitutional arguments are waived on appeal when not raised below. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006). Furthermore, appellant again fails to cite one Arkansas case on point or provide any convincing argument to persuade this court. Therefore, we reject his arguments for failure to provide convincing argument or citation to authority as well. See Harrison, supra.

Mindful of our obligation under Rule 10 of the Arkansas Rules of Appellate Procedure-Criminal, however, we note that there is no merit to appellant's contention. The jury here was instructed on the elements of capital murder and the appropriate aggravators and mitigators in applying the death penalty. Where there is substantial evidence to support the jury's finding of guilty on capital murder and one or more statutory aggravators have been proven beyond a reasonable doubt, we have held the imposition of the death penalty is not unconstitutional. See Echols, 326 Ark. 987-88, 936 S.W.2d at 545-46. Appellant does not challenge the accuracy of the jury instructions in this case, and as explained in more detail earlier on his sufficiency point, there was substantial evidence to support his capital-murder conviction. Neither does appellant argue that there was insufficient evidence to support the jury's finding of the statutory aggravator in this case — that the murder was committed in an especially cruel or depraved manner. That finding is supported by the evidence that the victim was bound, strangled, gagged, and driven down a dirt road into the woods where he was shot once at close range, dragged several feet, and then shot again at close range, the entire time pleading for his life.

Appellant's final constitutional argument focuses on our state statutes regarding the implementation of the death penalty. None of his arguments have merit as all the contentions he makes have been addressed and rejected in prior cases, including: that our death-penalty statutes are not unconstitutional for lack of comparative proportionality, Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995); are not void for vagueness, are not overly broad, and do not unconstitutionally overlap the first-degree murder statute, Echols, 326 Ark. at 982-84, 936 S.W.2d at 543-44; and our capital-murder sentencing statutes do not impose a mandatory death sentence because the jury is allowed to sentence the defendant to life imprisonment without parole, Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995).

IV. Prosecutorial Misconduct

Appellant's final point on appeal is that the prosecutor in his case "took improper actions that both rendered [a]ppellant's trial and sentencing fundamentally unfair and substantially risked arbitrary infliction of the death penalty." In support of this contention, appellant claims the State was allowed to "continually" lead its witnesses, make improper statements during closing, and mislead the jury as to whether a plea bargain was imminent for the codefendant. For the following reasons, appellant's argument is not persuasive.

First, for a cumulative-error argument with regard to prosecutorial misconduct to be upheld on appeal, the appellant must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the circuit court and a ruling obtained. Brown v. State, 368 Ark. 344, 246 S.W.3d 414 (2007). No such ruling was made here, and we can decline to address appellant's argument on that basis. Id.

Nevertheless, as to the leading questions, appellant concedes in his brief that he oft objected to the State leading its witnesses and that the circuit court sustained those objections. Appellant maintains that the circuit court should have, upon its own motion, recognized the excessive leading by the State and granted a mistrial. This appears to be a Wicks-type argument, for which appellant has provided no basis. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Appellant never moved for a mistrial on this basis, and his argument does not fall within any of the enumerated exceptions under Wicks; therefore, this argument is not preserved for our review.

Appellant also argues that statements made by the prosecutor during closing, in regard to lesser-included offenses and appellant's inconsistent explanations, rose to the level of prosecutorial misconduct. Specifically, he maintains that the prosecutor improperly commented on his defense of general denial and his decision not to testify. However, appellant failed to object on this basis at trial. Early in the State's closing argument, appellant's counsel objected without specifying his basis. Instead, his counsel said "I don't think I said that." The court reminded the jury it was instructed that remarks by attorneys are not evidence. After that, appellant's counsel never again objected during the prosecutor's closing. It is appellant's responsibility to obtain a clear ruling from the court, and we do not consider issues where the appellant has failed to do so. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997). Without a specific, contemporaneous objection, this point is not preserved for review.

On the merits, however, appellant's argument still fails. We have made it clear that a mistrial is a drastic remedy that should only be granted when justice cannot be served by continuing at trial, or when the error cannot be cured by an instruction or admonishment. Jackson v. State, 368 Ark. 610, 249 S.W.3d 127 (2007). We have also explained that "some leeway is given to counsel in closing argument and that counsel are free to argue every plausible inference which can be drawn from the testimony." Newman v. State, 353 Ark. 258, 290, 106 S.W.3d 438, 459 (2003). Therefore, a trial court is given broad discretion in controlling the arguments of counsel, such that, absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Jackson, 368 Ark. at 615-16, 249 S.W.3d at 130. The prosecutor's comments during closing regarding inconsistent statements given by appellant were related to evidence before the jury, including the various inconsistent explanations appellant gave to police and his girlfriend regarding what happened on the night in question. Moreover, the prosecutor's comments with regard to the lesser-included offenses occurred during rebuttal after the defense had asked the jury to convict on a lesser offense even though the defense had also argued that appellant's defense was that he had nothing to do with the crime. The prosecutor noted that appellant's defense was general denial, and that if the jury believed him, then it could not convict on any of the charges. We are not convinced that any misconduct here rose to the level to require the circuit court to sua sponte grant a mistrial.

For his final prosecutorial-misconduct argument, appellant maintains that the State failed to inform the jury that the codefendant, Carter, would receive a favorable plea bargain in exchange for his testimony against appellant. At the time of appellant's trial, Carter did not have a plea arrangement with the State. Everything he said could have been used against him. Appellant provides no citation to authority to support his argument that the State had any duty in this regard or that the circuit court erred in any way. This court need not address an argument unsupported by citation to authority or convincing argument, and we reject this argument for this reason alone. See Harrison, supra.

V. Rule 4-3(i) Rule 10 Compliance

The record in this case has been reviewed pursuant to Rule 4-3(i) of the Rules of the Arkansas Supreme Court, Ark. Code Ann. § 16-91-113(a), and Rule 10 of the Rules of Appellate Procedure-Criminal as required by law, and no reversible error has been found. We have considered each of the factors enumerated in Rule 10 and found no error.

Affirmed.

DANIELSON, J., concurs in part; dissents in part.