Justin Wilson v. State of Arkansas

2022 Ark. 158, 651 S.W.3d 717

• Court: Supreme Court of Arkansas
• Decided: September 22, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 158 SUPREME COURT OF ARKANSAS No. CR-21-598

Opinion Delivered: September 22, 2022

JUSTIN WILSON APPELLANT APPEAL FROM THE MILLER V. COUNTY CIRCUIT COURT [NO. 46CR-19-623] STATE OF ARKANSAS APPELLEE HONORABLE BRENT HALTOM, JUDGE

AFFIRMED.

COURTNEY RAE HUDSON, Associate Justice

Appellant, Justin Wilson, appeals his convictions in the Miller County Circuit Court

for two counts of first-degree murder, one count of attempted first-degree murder, one count

of aggravated assault, one count of aggravated robbery, committing the attempted murder in

the presence of a child and using a firearm in the commission of the other crimes. He was

sentenced to consecutive terms of life in prison for each murder.1 For reversal, Wilson argues

1 Wilson also received thirty years’ imprisonment for attempted murder, six years for aggravated assault and twenty years for aggravated robbery. His sentence for attempted murder was increased by ten years because the crime was committed in the presence of a child, and the sentence for each of the other counts was enhanced by fifteen years because he used a firearm in the commission of the crimes. that (1) surviving victim Lajhonta Collier’s testimony identifying him as the perpetrator

should have been suppressed, and (2) in the absence of Collier’s testimony, the State

presented insufficient evidence to support the jury’s conclusion that he was the person who

committed the crimes. We affirm.

On August 19, 2021, Wilson was charged by amended criminal information with two

counts of murder in the first degree, one count of attempted murder in the first degree, one

count of aggravated assault, and one count of aggravated robbery. Because a firearm was

used, the State sought a sentencing enhancement on both murder counts, the aggravated

assault count, and the aggravated-robbery count. The State also sought a sentencing

enhancement on the attempted-murder count because the crime was committed in the

presence of a child.

The trial was held August 23–24, 2021. According to evidence presented at trial,

Cleveland Watson III, a Domino’s Pizza employee, called 911 on August 28, 2019, to report

three shooting victims in apartment 52 at the Shangri-La apartment complex in Texarkana.

That was Lajhonta Collier’s apartment. Two of the victims, Scott Weigmann and Reginald

Davis, were deceased when officers arrived. Collier had been shot in the neck and was

initially feared to be dead. However, when responding officers determined that Collier was

alive, he was transported to a hospital. Officers at the scene found a gun, marijuana, and

scattered money inside the apartment. They also located a bullet underneath Weigmann’s

body and another stuck in a nearby wall. Collier’s eight-year-old son was found unharmed in

2 a bedroom where he had been watching The Lion King. Outside, police found money leading

from the apartment and into the courtyard. Investigators eventually recovered $2,493 from

the scene.

Detective Shane Kirkland of the Texarkana Police Department investigated the

crimes. The night of the shootings, Kirkland interviewed Watson and Larozi Davis III, who

was another witness at the apartment complex. Davis resided in an apartment near Collier’s

and heard gunshots. Like Watson, he also called 911. Both Watson and Davis reported

seeing a light-skinned black man with curly hair on the top of his head running from the

scene. They each said that the man was wearing a white shirt with dark pants. Davis

remembered hearing someone say “Justin” as the man was running. Davis later went to the

police station for an interview. He used his own phone to access Collier’s Facebook account

and located a photograph of Wilson, Collier, and Ethan Johnson.2 From that photograph,

Davis identified Wilson as resembling the man he had seen running. After Kirkland received

the statements from Watson and Davis, he made a copy of the photograph that Davis had

located and went to the hospital to interview Collier. Kirkland was concerned that Collier

would not survive his injury. At the hospital, Collier told Kirkland that Wilson had been the

2 Wilson appears in the photograph holding a pistol in one hand and making an obscene gesture with the other. The hair on top of his head is curly and lengthier than that on the sides.

3 shooter. After Collier’s statement, Kirkland showed Collier the photograph that Davis had

selected. Collier identified Wilson in the photograph and said that he was the shooter.

Collier survived the shooting and was the State’s key witness. He testified that he lived

in Shangri-La, apartment 52, on August 28, 2019, that Wilson had been over to his

apartment multiple times prior to the night of the shootings, and that he and Wilson had

grown up together. He recalled that the day before the shootings, he took the photograph of

him, Johnson, and Wilson. Collier said that he posted that photograph on Facebook, and

he identified Wilson in the photograph. Collier then recounted the events leading to the

shootings. According to Collier, Wilson had arranged to come by the apartment to purchase

marijuana. Collier said that he and the other victims were in the apartment when Wilson

knocked on the door, and Collier’s son let him in. Collier testified that he put his son in the

bedroom and returned to the living area and began to argue with Davis about allowing the

child to open the door. Collier said that he then turned to go back to the bedroom. Collier

recalled that as he turned, Wilson pulled out a gun and shot him in the neck. He said that

he fell to the floor but was still conscious and saw Weigmann and Davis fall after they were

shot. Collier testified that he heard Wilson going through his cabinets where he kept his

money and that he believed that Wilson took money and marijuana from him. Collier

conceded that he first told responding officers at the apartment that “Ethan” was the shooter.

Collier explained that at the time, he was “in and out,” and “laying on the floor . . .

4 paralyzed.” He testified that he was also “bleeding out” and that he was mistaken when he

initially identified Ethan.

The State also presented testimony from Dylan Ray. Ray was housed with Wilson at

the Miller County jail. Ray testified that Wilson had discussed the shooting at the Shangri-

La Apartments and that Wilson told him he had shot three people and discarded the gun at

a park. Ray also said that Wilson told him that his biggest regret was that one shooting victim

had survived. Other evidence at the trial included testimony from officers that they found

marijuana, a gun, and $639 at Wilson’s mother’s residence, where they had taken Wilson

into custody the day after the shootings. The marijuana was packaged in the same type of

FoodSaver bags as the marijuana found in Collier’s apartment.

Dr. Jennifer Forsyth, a forensic pathologist who conducted the autopsies of

Weigmann and Davis, testified that Weigmann died of gunshot wounds to the head and

torso. She concluded that Davis died of a gunshot wound to the head. Although projectiles

were recovered from the apartment and the bodies of the deceased, the State’s ballistics

expert testified that they were not fired from any of the firearms that were tested. 3 The gun

used in the shootings was never located.

Wilson testified in his own defense. He admitted that he had been dressed in a white

shirt and black pants on August 28, 2019, and that he had been to Collier’s apartment twice

3 In addition to the firearms recovered from Collier’s apartment and Wilson’s mother’s residence, two other firearms were tested as part of the investigation.

5 that day. According to Wilson, the second time he went to the apartment, he intended to

purchase marijuana. He said that he obtained some marijuana and went to the bathroom.

Wilson testified that as he was in the hallway returning to the living area, he saw Weigmann

being forced into the front door and two men coming in behind him. Wilson said that he

saw that one of the men had a gun and that he therefore retreated as shooting began. He

said that he came out after the shooting ended, checked Collier’s pulse, and fled the scene.

Wilson agreed that he was probably the running man that Davis described seeing the night

of the shootings. Wilson said that after he left the apartment, he went with some friends to

buy groceries and cook hamburgers. He admitted that he did not call police at any point that

night.

The circuit court denied Wilson’s motions for a directed verdict. Following closing

arguments, the case was submitted to the jury, which found Wilson guilty on all counts.

Wilson filed a timely appeal.

Although it is presented as his second point on appeal, we first address Wilson’s

challenge to the sufficiency of the evidence due to double-jeopardy considerations. Armstrong

v. State, 2020 Ark. 309, 607 S.W.3d 491. Wilson contends that without Collier’s testimony,

the State presented insufficient evidence to support the jury’s conclusion that he was the one

who had committed the crimes.

In reviewing a sufficiency challenge, we view the evidence in the light most favorable

to the State, considering only the evidence that supports the verdict. McCray v. State, 2020

6 Ark. 172, 598 S.W.3d 509. This consideration encompasses all the evidence presented at

trial, including that which may have been inadmissible. Watson v. State, 2014 Ark. 203, 444

S.W.3d 835. We will affirm a judgment of conviction if substantial evidence exists to support

it. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. Substantial evidence is evidence that

is of sufficient force and character that it will, with reasonable certainty, compel a conclusion

one way or the other without resorting to speculation or conjecture. Id. Direct evidence is

evidence that proves a fact without resort to inference when, for example, it is proved by

witnesses who testify to what they saw, heard, or experienced. Chatmon v. State, 2015 Ark.

28, 467 S.W.3d 731. Circumstantial evidence is evidence of circumstances from which a fact

may be inferred. Id. Circumstantial evidence may provide a basis to support a conviction,

but it must be consistent with the defendant’s guilt and inconsistent with any other

reasonable conclusion. Armstrong, 2020 Ark. 309, 607 S.W.3d 491. Whether the evidence

excludes every other hypothesis is left to the jury to decide. Id. Further, the credibility of

witnesses is an issue for the jury, not the court; 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. Howard v. State, 2016 Ark. 434, 506 S.W.3d 843.

Wilson was convicted of two counts of murder in the first degree and one count of

attempted murder in the first degree as set forth in Arkansas Code Annotated sections 5-10-

102(a)(2) (Supp. 2017) and 5-3-201 (Repl. 2013). He was also convicted of aggravated assault

7 and aggravated robbery. See Ark. Code Ann. §§ 5-13-204 (Supp. 2019) & 5-12-103 (Repl.

2013). His sentence for attempted murder was enhanced pursuant to Arkansas Code

Annotated section 5-4-702 (Supp. 2019) because it was committed in the presence of a child,

and his other sentences were enhanced pursuant to Arkansas Code Annotated section 16-

90-120 (Supp. 2019) because he used a firearm.

On appeal, Wilson does not argue that any specific element of the charged crimes

was unsupported by substantial evidence. Instead, he asserts only that the State’s evidence

identifying him as the perpetrator was insufficient without Collier’s testimony.4 However, in

considering sufficiency, we must consider Collier’s challenged testimony, even if it was

improperly admitted. Watson, 2014 Ark. 203, 444 S.W.3d 835. Contrary to Wilson’s

contention, the State presented substantial evidence to support the jury’s conclusion that he

was the person who committed the crimes. First, Collier was in the apartment when he and

the other victims were shot. He testified that he knew Wilson, and he identified Wilson as

the shooter. According to Collier, Wilson was the only person other than the victims who

was in the apartment at the time of the shootings. Second, Ray testified that Wilson told

him that he had shot three people at the Shangri-La Apartments. Finally, Wilson himself

4 Wilson’s directed-verdict motion also challenged the sufficiency of evidence for certain elements of the aggravated-robbery and aggravated-assault charges. However, on appeal he only challenges the State’s proof of identity. Arguments made to the trial court but not included in arguments on appeal are considered abandoned. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).

8 admitted being at the apartment when the shootings occurred and running away thereafter.

While Wilson claimed that two other men were responsible, other witnesses saw only one

person running from the scene. Although Wilson’s testimony directly contradicted Collier’s,

and Collier initially told law enforcement officers that Ethan was the shooter, a jury may

believe all or part of any witness’s testimony and may resolve questions of conflicting

testimony and inconsistent evidence. Howard, 2016 Ark. 434, 506 S.W.3d 843. Moreover,

Wilson’s improbable explanation and flight from the scene of a crime are indicative of guilt.

Id. (holding that efforts to conceal a crime and evade detection, along with false, improbable,

or contradictory statements to explain suspicious circumstances may be considered by the

jury as evidence of guilt). The evidence presented allowed the jury to reach its conclusion

without resorting to speculation or conjecture.5 Accordingly, we hold that substantial

evidence supports the jury’s verdict.

We turn next to Wilson’s contention that Collier’s testimony should have been

suppressed. Wilson asserts that authorities used an impermissibly suggestive procedure when

they showed him a single photograph that depicted Wilson. Before the trial, Wilson moved

to suppress the identification evidence expected to be offered by Collier. The circuit court

considered the motion at an August 20, 2021 hearing. Kirkland testified at the hearing. He

5 In his brief, Wilson argues that “in the absence of Collier’s testimony . . . there was insufficient evidence to support appellant’s conviction.” Thus, Wilson appears to concede that with Collier’s testimony, substantial evidence supports the jury’s verdict.

9 said that he asked Collier at the hospital if he knew the identity of the shooter and Collier

said, “[I]t was Justin.” According to Kirkland, it was only after Collier made that statement

that he produced the photograph and that Collier identified Wilson as the shooter. Kirkland

also said that Collier never mentioned Ethan, and he testified that Collier at that time

seemed “lucid . . . and clear of mind.” The circuit court concluded that Collier’s pretrial

identification was not constitutionally improper and that he would be allowed to testify to

the pretrial identification and to offer identification testimony at the trial. Accordingly, the

circuit court denied Wilson’s motion to suppress Collier’s identification evidence.

We will not reverse a circuit court’s ruling on the admissibility of an in-court

identification unless that ruling is clearly erroneous under the totality of the circumstances.

Dorsey v. State, 2020 Ark. 316, 607 S.W.3d 485. In making that determination, we look first

at whether the pretrial identification procedure was unnecessarily suggestive or otherwise

constitutionally suspect. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003). It is an

appellant’s burden to show that a pretrial identification was suspect. Ray v. State, 2009 Ark.

521, 357 S.W.3d 872.

This court has held that a pretrial identification violates the Due Process Clause when

there are suggestive elements in the identification procedure that make it all but inevitable

that the victim will identify one person as the culprit. Williams v. State, 2014 Ark. 253, 435

S.W.3d 483. However, even if prior identifications may have been improper or suggestive,

an in-court identification will not be suppressed if indicia of reliability are found to

10 independently exist. Id. Thus, reliability is the linchpin in determining the admissibility of

identification testimony. Mezquita, 354 Ark. 433, 125 S.W.3d 161.

In determining reliability, the following factors are considered: (1) the prior

opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description

of the accused; (3) any identification of another person prior to the pretrial identification

procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the

witness to identify the defendant on a prior occasion; and (6) the lapse of time between the

alleged act and the pretrial identification procedure. Mezquita, 354 Ark. 433, 125 S.W.3d

161. The conclusion to be drawn from these factors is dependent on the totality of the

circumstances. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). It is for the trial court to

determine if there are sufficient aspects of reliability present in an identification to permit

its use as evidence. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). It is then for

the jury to decide what weight that identification testimony should be given. Williams, 2014

Ark. 253, 435 S.W.3d 483. We will not inject ourselves into the process of determining

reliability unless there is a very substantial likelihood of misidentification. Id. Notably, the

factors regarding the reliability of an in-court identification need not be addressed if it is

determined that the pretrial identification procedure is not unduly suggestive. Thompson v.

State, 2019 Ark. 312, 586 S.W.3d 615 (citing King v. State, 323 Ark. 558, 916 S.W.2d 725

(1996)).

11 In this instance, the circuit court did not clearly err in determining that Collier’s

pretrial identification was not constitutionally improper. The evidence in the record

indicates that Collier actually identified Wilson by name before he was shown the

photograph. Kirkland’s showing Collier the photograph could not have made it “all but

inevitable” that Collier would identify Wilson because Collier had already identified Wilson

as the shooter. Because we hold that the procedure was not unduly suggestive, we need not

explore the issue of whether the identification was reliable under the totality of the

circumstances. Ray, 2009 Ark. 521, 357 S.W.3d 872.

Because Wilson received a life sentence, the record has been examined for all

objections, motions, and requests made by either party that were decided adversely to him

in compliance with Arkansas Supreme Court Rule 4-3(a) (2021), and no prejudicial error

has been found.

James Law Firm, by: J. Daniel Hall and William O. “Bill” James, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.