Cite as 2014 Ark. App. 84
ARKANSAS COURT OF APPEALS DIVISION I No. CR-12-1115
Opinion Delivered February 12, 2014 WALTER ALLEN BROOKS APPELLANT APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. CR-2010-302] V. HONORABLE RICHARD L. PROCTOR, JUDGE STATE OF ARKANSAS APPELLEE REVERSED AND REMANDED
JOHN MAUZY PITTMAN, Judge
Appellant was charged with capital murder in the death of Anna Mae Banks and the
attempted capital murder of Nathaniel Banks. After a jury trial, he was convicted of the
lesser-included offenses of first-degree murder and attempted first-degree murder, and was
sentenced to consecutive terms of imprisonment of eighty and fifty years. For reversal, he
argues that the trial court erred in denying his motions for directed verdict; in refusing to
instruct the jury to determine whether several witnesses were accomplices to the crimes; in
permitting the State to present evidence of other bad acts; in denying his motion for a
mistrial after State witnesses repeatedly volunteered testimony regarding evidence not
provided to appellant in discovery; and in refusing to instruct the jury on second-degree
murder and attempted second-degree murder as lesser-included offenses. We reverse and
remand. Cite as 2014 Ark. App. 84
Tammy Bernard testified that she lived in Widener, Arkansas, in 2010, and that
Nathaniel Britt had been her boyfriend from 2006 until February 2010, when she started
dating appellant. Britt was the son of victims Nathaniel and Anna Mae Banks, who also lived
in Widener and very close to the residence that Tammy Bernard shared with her sister.
Tammy Bernard testified that she could get to the Bankses’ house by simply cutting through
her yard. She also testified that, despite their breakup, Britt maintained a friendly relationship
with her sister and was visiting her sister at the Bernard home on June 16, 2010.
Nathaniel Britt testified that he was visiting Tammy’s sister on that date and was
confronted by appellant, with whom he had a troubling encounter. The next day, June 17,
2010, Britt called Tammy and asked her “what was wrong with her boyfriend,” which led
to an argument with her. Britt testified that, later that day, while he was en route to Forrest
City to get work supplies, appellant telephoned him and asked him where he was. Britt
replied that he was at work and would not be home for several hours. Britt testified that
appellant responded by saying, “I’ll be there when you get off.”
Britt’s father, Nathaniel Banks, testified that he and his wife, Anna Mae, lived in
Widener on June 17, 2010, and that they returned to their house that morning after going
to town for hog feed. Mr. Banks stated that he and Anna Mae were facing one another,
unloading the bags of feed in their carport, when he heard a noise and saw her fall to the
ground bleeding. Looking around, he saw a man slightly shorter than him standing behind
him. Mr. Banks stated that when he turned to the man:
[The man] put the pistol in my face and pulled the trigger and it snapped. It didn’t go off. He then rejected [sic] it and put it back up there and it snapped again. He
2 Cite as 2014 Ark. App. 84
ran, ’cause I dropped the bag and I stumbled over the bag and when I got back to my feet, he was standing in the road. I had never seen him before in my life. I started to go out there after him and he rejected [sic] the gun, aimed it toward me and snapped again. Then he took off up the highway.
Mrs. Banks was killed instantly. Mr. Banks called 911 but was unable to identify the
shooter other than to say he was wearing a “do-rag,” sunglasses, a cap, and dark-colored
pants. A passerby then approached Mr. Banks and identified the automobile in which he saw
the alleged killer traveling. This description prompted an investigation that quickly resulted
in the apprehension of appellant and three other men in a vehicle traveling from Widener
to Hughes, Arkansas.
All of the occupants of the automobile were somehow related. Earl Smith, the driver,
had children by one of appellant’s sisters; Kipp Doolittle cohabited with another of
appellant’s sisters and had a child by her; and Robert Brooks was appellant’s brother. Both
Smith and Doolittle testified at trial. Both said that appellant had paid them to go to
Widener with him.
Smith testified that he understood that the purpose of the trip was to allow appellant
to pick up some clothes from his girlfriend’s house. Doolittle testified that he believed that
he was being paid to help appellant’s girlfriend move. Although they both denied any
foreknowledge that the purpose of the trip was to commit a murder, Smith testified that,
once in Widener, appellant made a telephone call from his girlfriend’s yard, told Smith that
it would be a few hours before the recipient of the call would arrive, and said that he was
“going to walk over to [where] the guy’s momma and daddy stayed across the street.” Smith
stated that appellant then got into the back seat of the car, saying that he was cleaning his
3 Cite as 2014 Ark. App. 84
bullets so that no evidence would be left, and then walked to the Bankses’ house. Smith
heard a gunshot, and when appellant returned he told Smith that he (appellant) had
“execute-styled the woman and tried to kill the man” but that his gun jammed.
Doolittle testified to the same effect, stating that he did not know that appellant had
a gun until he began to clean his shell casings. He also testified that, on the day of the
shooting, appellant was wearing a black tank top, black pants, a do-rag, a stocking cap, and
sunglasses, and that appellant threw the sunglasses out of the car window while they were
returning home from Widener.
Appellant was not wearing all of those items when the men were apprehended. The
cap, do-rag, and gloves were found in Smith’s car, and the sunglasses were found along the
highway. A semiautomatic pistol and ammunition were also found in Smith’s car. Forensic
tests indicated that this pistol had fired an ejected shell casing found at the murder scene.
Police investigators took a DNA sample from appellant, but not from the other men, because
they had determined that appellant was the suspect. Male DNA samples were obtained from
the gloves and do-rag found in the car, but DNA profiling excluded appellant as a
contributor to the DNA profile obtained from those items.
We now turn to appellant’s arguments. Appellant’s sufficiency argument is not
preserved for appeal. He asserts that he was convicted based on the uncorroborated
testimony of accomplices, but the witnesses to whom he refers—Smith and Doolittle—were
never declared to be accomplices by the court or found to be accomplices by the jury. A
person must first be found to be an accomplice for the requirement of corroborative
4 Cite as 2014 Ark. App. 84
evidence set out in Ark. Code Ann. § 16-89-111(e)(A)(1) (Repl. 2013) to be applicable.
Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006); Rockett v. State, 319 Ark. 335, 891 S.W.2d
366 (1995). Because no accomplice instruction was submitted to the jury, and because
appellant never requested that the trial court hold the witnesses to be accomplices as a matter
of law, accomplice status was never determined, and we are therefore unable to reach the
merits of appellant’s sufficiency argument.
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2014 Ark. App. 84
ARKANSAS COURT OF APPEALS DIVISION I No. CR-12-1115
Opinion Delivered February 12, 2014 WALTER ALLEN BROOKS APPELLANT APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. CR-2010-302] V. HONORABLE RICHARD L. PROCTOR, JUDGE STATE OF ARKANSAS APPELLEE REVERSED AND REMANDED
JOHN MAUZY PITTMAN, Judge
Appellant was charged with capital murder in the death of Anna Mae Banks and the
attempted capital murder of Nathaniel Banks. After a jury trial, he was convicted of the
lesser-included offenses of first-degree murder and attempted first-degree murder, and was
sentenced to consecutive terms of imprisonment of eighty and fifty years. For reversal, he
argues that the trial court erred in denying his motions for directed verdict; in refusing to
instruct the jury to determine whether several witnesses were accomplices to the crimes; in
permitting the State to present evidence of other bad acts; in denying his motion for a
mistrial after State witnesses repeatedly volunteered testimony regarding evidence not
provided to appellant in discovery; and in refusing to instruct the jury on second-degree
murder and attempted second-degree murder as lesser-included offenses. We reverse and
remand. Cite as 2014 Ark. App. 84
Tammy Bernard testified that she lived in Widener, Arkansas, in 2010, and that
Nathaniel Britt had been her boyfriend from 2006 until February 2010, when she started
dating appellant. Britt was the son of victims Nathaniel and Anna Mae Banks, who also lived
in Widener and very close to the residence that Tammy Bernard shared with her sister.
Tammy Bernard testified that she could get to the Bankses’ house by simply cutting through
her yard. She also testified that, despite their breakup, Britt maintained a friendly relationship
with her sister and was visiting her sister at the Bernard home on June 16, 2010.
Nathaniel Britt testified that he was visiting Tammy’s sister on that date and was
confronted by appellant, with whom he had a troubling encounter. The next day, June 17,
2010, Britt called Tammy and asked her “what was wrong with her boyfriend,” which led
to an argument with her. Britt testified that, later that day, while he was en route to Forrest
City to get work supplies, appellant telephoned him and asked him where he was. Britt
replied that he was at work and would not be home for several hours. Britt testified that
appellant responded by saying, “I’ll be there when you get off.”
Britt’s father, Nathaniel Banks, testified that he and his wife, Anna Mae, lived in
Widener on June 17, 2010, and that they returned to their house that morning after going
to town for hog feed. Mr. Banks stated that he and Anna Mae were facing one another,
unloading the bags of feed in their carport, when he heard a noise and saw her fall to the
ground bleeding. Looking around, he saw a man slightly shorter than him standing behind
him. Mr. Banks stated that when he turned to the man:
[The man] put the pistol in my face and pulled the trigger and it snapped. It didn’t go off. He then rejected [sic] it and put it back up there and it snapped again. He
2 Cite as 2014 Ark. App. 84
ran, ’cause I dropped the bag and I stumbled over the bag and when I got back to my feet, he was standing in the road. I had never seen him before in my life. I started to go out there after him and he rejected [sic] the gun, aimed it toward me and snapped again. Then he took off up the highway.
Mrs. Banks was killed instantly. Mr. Banks called 911 but was unable to identify the
shooter other than to say he was wearing a “do-rag,” sunglasses, a cap, and dark-colored
pants. A passerby then approached Mr. Banks and identified the automobile in which he saw
the alleged killer traveling. This description prompted an investigation that quickly resulted
in the apprehension of appellant and three other men in a vehicle traveling from Widener
to Hughes, Arkansas.
All of the occupants of the automobile were somehow related. Earl Smith, the driver,
had children by one of appellant’s sisters; Kipp Doolittle cohabited with another of
appellant’s sisters and had a child by her; and Robert Brooks was appellant’s brother. Both
Smith and Doolittle testified at trial. Both said that appellant had paid them to go to
Widener with him.
Smith testified that he understood that the purpose of the trip was to allow appellant
to pick up some clothes from his girlfriend’s house. Doolittle testified that he believed that
he was being paid to help appellant’s girlfriend move. Although they both denied any
foreknowledge that the purpose of the trip was to commit a murder, Smith testified that,
once in Widener, appellant made a telephone call from his girlfriend’s yard, told Smith that
it would be a few hours before the recipient of the call would arrive, and said that he was
“going to walk over to [where] the guy’s momma and daddy stayed across the street.” Smith
stated that appellant then got into the back seat of the car, saying that he was cleaning his
3 Cite as 2014 Ark. App. 84
bullets so that no evidence would be left, and then walked to the Bankses’ house. Smith
heard a gunshot, and when appellant returned he told Smith that he (appellant) had
“execute-styled the woman and tried to kill the man” but that his gun jammed.
Doolittle testified to the same effect, stating that he did not know that appellant had
a gun until he began to clean his shell casings. He also testified that, on the day of the
shooting, appellant was wearing a black tank top, black pants, a do-rag, a stocking cap, and
sunglasses, and that appellant threw the sunglasses out of the car window while they were
returning home from Widener.
Appellant was not wearing all of those items when the men were apprehended. The
cap, do-rag, and gloves were found in Smith’s car, and the sunglasses were found along the
highway. A semiautomatic pistol and ammunition were also found in Smith’s car. Forensic
tests indicated that this pistol had fired an ejected shell casing found at the murder scene.
Police investigators took a DNA sample from appellant, but not from the other men, because
they had determined that appellant was the suspect. Male DNA samples were obtained from
the gloves and do-rag found in the car, but DNA profiling excluded appellant as a
contributor to the DNA profile obtained from those items.
We now turn to appellant’s arguments. Appellant’s sufficiency argument is not
preserved for appeal. He asserts that he was convicted based on the uncorroborated
testimony of accomplices, but the witnesses to whom he refers—Smith and Doolittle—were
never declared to be accomplices by the court or found to be accomplices by the jury. A
person must first be found to be an accomplice for the requirement of corroborative
4 Cite as 2014 Ark. App. 84
evidence set out in Ark. Code Ann. § 16-89-111(e)(A)(1) (Repl. 2013) to be applicable.
Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006); Rockett v. State, 319 Ark. 335, 891 S.W.2d
366 (1995). Because no accomplice instruction was submitted to the jury, and because
appellant never requested that the trial court hold the witnesses to be accomplices as a matter
of law, accomplice status was never determined, and we are therefore unable to reach the
merits of appellant’s sufficiency argument.
We do, however, agree with appellant’s argument that the trial court erred by refusing
appellant’s request to submit the issue of accomplice status to the jury. The significance of
this issue was explained in Meadows v. State, 2012 Ark. 57, at 6–7, 386 S.W.3d 470, 475:
When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant . . . with the commission of the offense.” Ark. Code Ann. § 16-89-111(e)(1)(A) (Repl. 2005). Corroboration must be evidence of a substantive nature, since it must be directed toward proving the connection of the accused with the crime, and not directed toward corroborating the accomplice’s testimony. Camp v. State, [2011 Ark. 155, 381 S.W.3d 11]. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with its commission. Id. The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in a crime in a manner suggestive of joint participation, are relevant factors in determining the connection of an accomplice with the crime. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004) (quoting Andrews v. State, 344 Ark. 606, 613–14, 42 S.W.3d 484, 489 (2001)). When two or more persons assist each other in the commission of a crime, each is an accomplice and criminally liable, ultimately, for his own conduct, but he cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Id.
5 Cite as 2014 Ark. App. 84
Given the evidence that the shooting may have been prompted by revenge, the
familial relations of the witnesses to appellant, and the conflicting explanations for the trip
given by the witnesses, the jury could properly have found that witnesses Smith and Doolittle
knew the real purpose of the trip from its inception and were intentionally assisting appellant
in the commission of the crimes. Consequently, we hold that the trial court erred in refusing
to give the proffered accomplice instruction, and we reverse and remand for retrial.
We do not address the remaining issues because they are unlikely to recur on retrial.
In particular, we decline to address the issue concerning the propriety of the lesser-included-
offense instructions on this record. The witnesses had much to say regarding appellant’s
expressed intent, but the weight and character of their testimony will likely be significantly
different after the jury determines whether these witnesses were accomplices to the crime.
Reversed and remanded.
WALMSLEY and HIXSON, JJ., agree.
Janice W. Vaughn, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.