Cook v. State

73 S.W.3d 1, 77 Ark. App. 20, 2002 Ark. App. LEXIS 173
Court of Appeals of Arkansas·Decided March 20, 2002·No. CA CR 01-368·Published·Cited by 16 cases

Opinions

Wendell L. Griffen, Judge.

Denaro Cook appeals from his convictions as an accomplice to first-degree murder, aggravated robbery, and misdemeanor theft of property. He argues that the trial court erred in 1) denying his motions for a directed verdict on all charges; 2) failing to declare two witnesses as accomplices and in admitting their uncorroborated hearsay testimony; and 3) refusing to give jury instructions for the lesser included charges of robbery and felony manslaughter. We hold that any error committed by the trial court was harmless error, and affirm.

Appellant was charged as an accomplice to capital murder, aggravated robbery, and felony theft of property in connection with a murder that occurred during the April 13, 1999 robbery of Western Sizzlin’, a restaurant located on Rodney Parham Road in Little Rock. Appellant and his brother, Torian, were employed as servers at the restaurant and were working on the night of the incident. It is undisputed that on April 13, the restaurant was robbed by their brother, Keyono Cook, also known as “Buck,” and by a friend of appellant’s, Frank Barnes. David Nichols, the manager of the restaurant, was shot and killed during the robbery.

Keyono Cook and Frank Barnes were former employees of the restaurant. On the evening of April 13, Frank, Rodney Barnes (Frank’s brother), Nakia Hall (Frank’s girlfriend), Tim Dillard, and Keyono met at Franke’s, another restaurant located'on Rodney Parham. Keyono drove appellant’s car and Frank drove his own car. Keyono had a gun and a mask and indicated that he was going to rob Franke’s. However, he abandoned that plan because he concluded the area was too well-lit. Their group then went to Western Sizzlin’.1

The testimony by appellant’s co-workers and other witnesses established that the group arrived at the restaurant shortly before closing. Appellant went outside and talked to Keyono two times, and appellant at one point motioned for them to come in. Keyono and Frank subsequently entered the restaurant through the back door and took an undetermined amount of money in a bank bag. Keyono later dumped the gun and went to Frank’s house to divide the money.

During the trial, appellant objected to Dillard’s testimony. The State sought to have Dillard testify that after Keyono spoke with appellant the second time, he got back into his car and stated that appellant told him that everything was set up inside and that the back door was unlocked. Appellant objected that this was hearsay, and the trial court overruled his objection on the basis that it was admissible under Arkansas Rule of Evidence 801(d) (2) (v), as a declaration of a co-conspirator during the progress of a crime.

At the close of the State’s evidence, appellant moved for a directed verdict on all charges, arguing that the testimony of Dillard and Rodney Barnes was not corroborated and that the State had no evidence to independently connect appellant with the crime. He also asked that the court declare Dillard and Barnes to be accomplices as a matter of law. The trial court reduced the felony theft of property charge to a misdemeanor. However, the court declined to rule Dillard and Barnes accomplices as a matter of law. It also denied the motions for a directed verdict with respect to the remaining charges. Appellant thereafter testified. He denied any participation in the planning or execution of the robbery and asserted that he tried to discourage his brother (Keyono Cook) from committing the robbery. He renewed his motions at the close of all of the evidence and requested that the trial court instruct the jury on the lesser-included offenses of robbery and felony manslaughter. Although the trial court denied these motions, it provided an instruction on the lesser charge of first-degree murder.

The jury found appellant guilty as an accomplice to aggravated robbery and to the reduced charges of first-degree murder and theft of property. He was sentenced to serve ten years on the murder charge, ten years on the aggravated robbery charge to run consecutively with the murder charge, and six months on the theft of property charge to run concurrently with the other two charges, for a total of twenty years in prison.2

I. Summary of the Testimony

Kyona Hyder was working at the restaurant the night of the robbery. She noticed that the back doors were unlocked, which she said was unusual. She witnessed Frank running at the side of the building toward the back of the building. When she asked appellant if he saw Frank running to the back of the restaurant, appellant told her that Frank had to use the restroom. Hyder also saw Frank and Keyono inside the restaurant by the utility closet in the back of the restaurant, near the manager’s office. She said that Keyono had a ski mask on top of his head. When she asked what they were doing, Keyono gestured for her to be quiet. She said that she asked appellant if he saw Keyono back there. Hyder said later in the evening appellant told her that he thought Keyono had killed Nichols. Because appellant had an apparent propensity for joking, he showed Hyder that his hands were shaking, so she would know he was “for real.” She testified that either appellant or his brother, Torian, told her before she left the restaurant not to say anything regarding the robbery.

Sharronda Arnold, another coworker, testified that she saw Keyono and Frank Barnes pull up and park in two separate cars. She stated that Nakia and Rodney Barnes were also with Frank. According to Arnold, Torian went outside, then came back in and talked to appellant. When Torian came back in, he said that Keyono was going to rob the place and asked Torian if he robbed the place would anyone “snitch” on him.

Arnold further testified that after Torian came back inside and talked to appellant, appellant then went outside and talked to Keyono for approximately ten minutes and made hand motions that appeared to her to be indicating, “Come in.” Appellant then returned and walked to the back of the restaurant. Arnold stated that appellant told her they were going to rob the restaurant, but he was laughing and she thought he was kidding. After that, she saw Keyono and Frank walk to the side of the building where the back doors were located. She heard some loud bangs, but she thought that someone had dropped trays. When she went toward the back of the restaurant, she saw Keyono running toward the back door and saw Frank going the opposite direction. She said that Keyono was wearing a black mask and was carrying a green money bag and carried something that looked like a gun. Arnold further stated that Rodney Barnes came inside the restaurant while the employees were looking for Nichols. She said that appellant told her that they had killed Nichols. While they were waiting for the police, appellant told her to tell the police that she did not know anything.

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Cook v. State, 73 S.W.3d 1, 77 Ark. App. 20, 2002 Ark. App. LEXIS 173 (Ark. Ct. App. 2002).

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