McGehee v. State

992 S.W.2d 110, 338 Ark. 152
CourtSupreme Court of Arkansas
DecidedJune 17, 1999
DocketCR 98-510
StatusPublished
Cited by59 cases

This text of 992 S.W.2d 110 (McGehee v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGehee v. State, 992 S.W.2d 110, 338 Ark. 152 (Ark. 1999).

Opinion

Donald L. Corbin, Justice.

Appellant Jason McGehee appeals the judgment of the Boone County Circuit Court convicting him of the capital murder of fifteen-year-old John Melbourne Jr. and sentencing him to death by lethal injection. Appellant was also convicted of kidnapping Melbourne and was sentenced to life imprisonment on that charge. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1—2(a)(2). For reversal, Appellant argues that (1) there was insufficient corroborating evidence to convict, him of the crimes; (2) the trial court erred in allowing into evidence testimony about prior bad acts and other crimes committed by Appellant; (3) there was insufficient evidence to support the aggravating circumstance that Appellant committed the murder to avoid arrest; and (4) the trial court erred in limiting his presentation of mitigating evidence during the penalty phase of the trial. We find no error and affirm.

The underlying facts of this criminal episode are set out in detail in McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). We see no need to repeat those facts in their entirety. Suffice it to say that on August 19, 1996, Appellant, Benjamin McFarland, Christopher Epps, Candace Campbell, and, to a lesser extent, Robert Diemert held John Melbourne Jr. against his will and severely beat him for “snitching” on them. The beating initially occurred at Appellant’s house in Harrison and later continued at Appellant’s uncle’s house in Omaha, Arkansas. After having beaten the boy for approximately two hours, Appellant, McFarland, and Epps took Melbourne out behind the house in Omaha, into a wooded area, and strangled him. Melbourne’s naked body was discovered by police over two weeks later, on September 3, 1996. Appellant, Epps, and McFarland were arrested and charged with capital murder and kidnapping, while Campbell and Diemert were charged with battery and kidnapping. McFarland and Epps were tried separately and convicted of both crimes; both men received life imprisonment without the possibility of parole. Appellant was the last codefendant tried; he, too, was convicted of both crimes, but was sentenced to die by lethal injection. This appeal followed.

I. Corroborating Evidence of Accomplice Testimony

For his first point for reversal, Appellant argues that the trial court erred in denying his motion for directed verdict on the ground that there was insufficient evidence to corroborate the testimony of accomplices Epps, Campbell, and Diemert. We treat motions for directed verdict as challenges to the sufficiency of the evidence. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id.

Arkansas Code Annotated § 16-89-111 (e)(1) (1987) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.” Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Id. The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Marta, 336 Ark. 67, 983 S.W.2d 924. Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id.

The record reflects that at the conclusion of all the evidence, the trial court instructed the jury that Epps was an accomplice to the capital murder as a matter of law; thus, there is no dispute that his testimony must be corroborated as to that charge. The trial court also instructed the jury that Epps, Campbell, and Diemert were accomplices to the kidnapping as a matter of law; hence, their testimony must be corroborated by other evidence of the kidnapping. The trial court did not, however, instruct the jury that Campbell and Diemert were accomplices to the capital murder, either as a matter of law or fact. It is not apparent from the record that Appellant ever requested that Campbell and Diemert be submitted as accomplices to the capital murder. At the conclusion of the State’s evidence, defense counsel made the following motion:

Your Honor, the defense moves for a directed verdict based upon the sufficiency of the evidence. First on the kidnapping charge, we argue that there’s no corroboration. All the testimony of the kidnapping came from Candace Campbell, Robert Diemert, and Chris Epps, who were all co-defendants and accomplices with Jason McGehee and, therefore, it is not sufficient merely to show that a crime was committed but that this defendant committed a crime and there’s no corroboration on that issue.
Similarly, on the capital murder charge, there’s no corroboration that he aided, abetted or solicited or participated in the murder other than being present which is not sufficient. And again, it’s not sufficient merely to show that a crime was committed, so we move for a directed verdict on those two issues. [Emphasis added.]

We do not view counsel’s statements as a request to have the jury decide the issue of Campbell’s and Diemert’s status as accomplices to the capital murder. Accordingly, we agree with the State that Appellant is now procedurally barred from arguing that they are accomplices to the murder.

The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). Where the witness was never found to be an accomplice, and that appellant failed to request that accomplice instructions be submitted to the jury for consideration, the issue is not preserved for our consideration. Lloyd, 332 Ark. 1, 962 S.W.2d 365; Rockett, 319 Ark. 335, 891 S.W.2d 366.

In the present case, Appellant did not request that Campbell and Diemert be declared to be accomplices to the capital murder as a matter of law, nor did he request that their status be submitted to the jury for determination. Rather, Campbell and Diemert were only declared to be accomplices on the charge of kidnapping. Thus, only Epps’s testimony must be corroborated on the murder charge.

A. Corroboration of Capital Murder

The record reflects that on August 19, 1996, John Melbourne Jr.

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Bluebook (online)
992 S.W.2d 110, 338 Ark. 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgehee-v-state-ark-1999.