Digitally signed by Susan P. Williams Reason: I attest to the accuracy and integrity of Cite as 2019 Ark. 323 this document Date: SUPREME COURT OF ARKANSAS 2022.07.26 No. CR-18-1029 12:47:24 -05'00' Opinion Delivered: November 14, 2019 TRAVIS PRICE APPELLANT APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35CR-16-253]
STATE OF ARKANSAS HONORABLE ALEX GUYNN, APPELLEE JUDGE
AFFIRMED.
JOHN DAN KEMP, Chief Justice
Appellant Travis Price appeals an order of the Jefferson County Circuit Court
convicting him of first-degree felony murder, two counts of aggravated robbery, and a
firearm enhancement and sentencing him as a habitual offender to life imprisonment. For
reversal, Price argues that the circuit court erred in denying his motions for directed verdict,
sentencing him illegally, and denying his motion to suppress. We affirm.
I. Facts
Officer Christopher Sweeney of the Pine Bluff Police Department testified that,
around midnight on May 14, 2016, he responded to a call involving a shooting at a Pine
Bluff residence. When he arrived at the scene, the officer witnessed a man later identified as
Jason Tyler carrying a red gaming table out of the home. Officer Sweeney entered the
residence and found a man named Mason Foster sitting in a chair. He also found the victim,
Andre Eason, unresponsive and lying on the floor. Dr. Adam Craig, a forensic pathologist at the Arkansas State Crime Laboratory, testified that Eason died from a gunshot wound
that entered the left shoulder area, traveled through the body, and lodged in his pelvic bone.
Five eyewitnesses testified at trial. Foster testified that several friends gathered for a
barbeque at his home and started shooting dice around 10:00 p.m. Foster stated that Price
and “two younger guys” came to his home “ready to gamble.” Foster stated that Price lost
his money, and he and his two friends walked out the back door but returned five minutes
later. According to Foster, Price reentered the room, pointed a gun at Foster’s face, and said
to “drop it, old school.” Foster said that he dropped his money, which totaled approximately
$1000, and Price lowered the gun. Foster slowly walked toward the bathroom, heard seven
or eight shots, heard the backdoor slam, and emerged from the bathroom. Foster witnessed
Price and the two men leave in a black Altima with a Texas license plate. Foster also testified
that he saw Eason lying on the floor.
Tyler testified that he arrived at Foster’s home around 11:00 p.m. on May 13, 2016.
He testified that he and other individuals gambled and played dice that evening but that he
lost his money. Tyler stated that he later heard shots, “balled up on the couch,” and heard
someone yell to get down. Tyler stated that he dropped his money and did not see who
asked for it. Tyler further stated that he and Anthony Luckett ran out the front door and
remained outside.
E.L. Surratt testified that he remembered drinking, shooting dice, and gambling at
Mason’s duplex until approximately 1:00 a.m. that evening. Surratt stated that he
remembered gambling with a man by the street name of “Red” or “Red Nose.” Surratt
testified that “[t]he one I was gambling with” left, and “he wasn’t out too long before he
2 came back in.” Surratt said that when the man returned, he shot his gun “in a seat or couch
or something” but was not aiming at anyone. When he heard the shot, Surratt jumped up,
got pushed, and fell to the floor. Surratt witnessed Foster pick up the table, and “they
scuffled over” it. According to Surratt, more shots were fired in the house, and one of the
men who “robbed the place” took his money.
Anthony Luckett testified that he went to Foster’s home and recalled Price needing
Foster to loan him $150. Luckett stated that Price asked him to intervene. Luckett testified
that when he heard shots, he ran out the door and two blocks down the street. Luckett
stated that he never saw Price with a gun, but he saw another man at the scene with a gun
in his pocket.
Jesse Pridgeon, Foster’s brother-in-law, testified that he saw Price “standing around
and gambling” that evening. Pridgeon stated that Price “had two young guys with him.”
He testified that when he walked out of the bathroom, he saw Price “cock a gun,” turn
around, fire a couple of shots in the house, and say, “All you mother fuckers on the floor.”
Pridgeon testified that he ran into a back bedroom where Price could not see him. While
he hid in the bedroom, Pridgeon heard five or six shots, heard someone say “someone got
hit,” and heard people “running everywhere and stuff.”
Detective Keith Banks of the Pine Bluff Police Department testified that he received
a call to investigate a possible homicide at approximately 1:00 a.m. When the detective
arrived, he met the five eyewitnesses—Foster, Tyler, Surratt, Luckett, and Pridgeon—and
interviewed them at the scene. Detective Banks testified that Price was subsequently
arrested, taken into custody, and interviewed. During the detective’s testimony, the State
3 played for the jury Price’s recorded interview during which he denied his involvement in
the murder but admitted his presence at Foster’s home that night.
On May 11, 2018, the State charged Price with one count of capital murder, six
counts of aggravated robbery, felon in possession of a firearm, and two sentencing
enhancements. A Jefferson County Circuit Court jury convicted Price of first-degree felony
murder, two counts of aggravated robbery against Foster and Surratt, and a felon-in
possession-of-a-firearm enhancement. The circuit court sentenced him as a habitual
offender to a term of life imprisonment for the first-degree murder conviction and two
terms of life imprisonment for the aggravated-robbery convictions. On May 24, 2018, the
circuit court entered its sentencing order. From this order, Price timely appealed.
II. Motions for Directed Verdict
On appeal, Price argues that the circuit court erred in denying his motion for directed
verdict because substantial evidence does not support the first-degree-murder conviction
and one of the aggravated-robbery convictions.
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. Gillard v. State, 372 Ark. 98, 270 S.W.3d 836 (2008). In reviewing a challenge to
the sufficiency of the evidence, we view the evidence in the light most favorable to the
State and consider only the evidence that supports the verdict. Id., 270 S.W.3d 836. We
affirm a conviction if substantial evidence exists to support it. Id., 270 S.W.3d 836.
Substantial evidence is that which 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. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).
4 Price’s criminal liability is based on his status as an accomplice. Under accomplice
liability, “[a] person may commit an offense either by his or her own conduct or that of
another person.” Ark. Code Ann. § 5-2-401 (Repl. 2013). “A person is criminally liable for
the conduct of another person if . . . [t]he person is an accomplice of another person in the
commission of an offense[.]” Ark. Code Ann. § 5-2-402(2) (Repl. 2013). A person is an
accomplice of another person if, with the purpose of promoting or facilitating the
commission of the offense, he or she solicits, advises, encourages, coerces, aids, agrees to
aid, or attempts to aid in planning or committing the offense. Ark. Code Ann. § 5-2-
403(a)(1)–(2) (Repl. 2013).
When a theory of accomplice liability is implicated, we affirm the circuit court’s
order in a sufficiency-of-the-evidence challenge if substantial evidence exists to show that
the defendant acted as an accomplice in the commission of the alleged offense. Cook v. State,
350 Ark. 398, 86 S.W.3d 916 (2002). We have said that there is no distinction between
principals on the one hand and accomplices on the other, insofar as criminal liability is
concerned. Id., 86 S.W.3d 916. When two people assist one another in the commission of
a crime, each is an accomplice and criminally liable for the conduct of both. Id., 86 S.W.3d
916. One cannot disclaim accomplice liability simply because he or she did not personally
take part in every act that went to make up the crime as a whole. Id., 86 S.W.3d 916.
A. First-Degree Murder
Price argues that the evidence was not sufficient to support his first-degree murder
conviction and specifically contends that the eyewitnesses failed to provide any testimony
about seeing the victim get shot or who shot him.
5 The felony-murder statute provides,
(a) A person commits murder in the first degree if:
(1) Acting alone or with one (1) or more other persons:
(A) The person commits or attempts to commit a felony; and
(B) In the course of and in furtherance of the felony or in immediate flight from the felony, the person or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]
Ark. Code Ann. § 5-10-102(a)(1) (Repl. 2013).
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.
Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Whether the evidence excludes every
other hypothesis is left to the jury to decide. Id., 226 S.W.3d 780. The weight of the
evidence and the credibility of the witnesses are matters for the fact-finder, not for this court
on appeal. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). The jury may believe all
or part of any witness’s testimony and is responsible for resolving questions of conflicting
testimony and inconsistent evidence. Id., 203 S.W.3d 63. A criminal defendant’s intent or
state of mind is rarely capable of proof by direct evidence and most often is inferred from
the circumstances of the crime. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). A jury
is not required to believe all or any part of a defendant’s or witness’s statement and is entitled
to draw upon common sense and experience in reaching its verdict. Davis v. State, 325 Ark.
96, 925 S.W.2d 768 (1996).
Here, the State presented substantial evidence that supports Price’s first-degree
felony-murder conviction. Five eyewitnesses testified that Price and two younger men went
6 to Foster’s home to gamble. There, Price lost his money, went outside with his two
associates, returned to the gambling table inside the house, pointed his gun at Foster,
demanded money, shot rounds inside the house, and yelled at everyone to hit the floor.
These witnesses heard multiple gunshots and saw the men flee the scene. Officer Sweeney
arrived and found the victim lying unresponsive on the floor. In short, the jury heard
evidence that Price facilitated, encouraged, and participated in Eason’s murder during the
course of the aggravated robbery that evening at the gambling house. Viewing the evidence
in a light most favorable to the State and giving deference to the jury’s findings on the
witnesses’ credibility, we hold that substantial evidence supported Price’s first-degree felony-
murder conviction.
B. Aggravated Robbery
Price also challenges his conviction for aggravated robbery against Surratt and asserts
that the State failed to prove that either he or his accomplice had stolen money from Surratt
on the night of the murder.
A person commits aggravated robbery if he or she commits robbery as defined by
Arkansas Code Annotated section 5-12-102 (Repl. 2013), and the person (1) is armed with
a deadly weapon; (2) represents by word or conduct that he or she is armed with a deadly
weapon; or (3) inflicts or attempts to inflict death or serious physical injury upon another
person. Ark. Code Ann. § 5-12-103(a) (Repl. 2013). “A person commits robbery if, with
the purpose of committing a felony or misdemeanor theft or resisting apprehension
immediately after committing a felony or misdemeanor theft, the person employs or
threatens to immediately employ physical force upon another person.” Ark. Code Ann. §
7 5-12-102(a) (Repl. 2013). Theft occurs if a person knowingly “(1) [t]akes or exercises
unauthorized control over or makes an unauthorized transfer of an interest in the property
of another person with the purpose of depriving the owner of the property; or (2) [o]btains
the property of another person by deception or by threat with the purpose of depriving the
owner of the property.” Ark. Code Ann. § 5-36-103(a) (Repl. 2013).
Here, Surratt’s testimony itself provides substantial evidence to support Price’s
aggravated-robbery conviction. Surratt testified that he arrived at Foster’s duplex at
approximately 1:00 a.m. and recalled seeing a man with the nickname of “Red” or “Red
Nose.” He testified that Red went outside, returned, and fired a shot at the couch. Surratt
remembered that the “the second one,” Red’s friend, demanded money from him. Surratt
admitted that he could not identify Price as Red or who had fired the shots. Nevertheless,
the testimony adduced at trial demonstrates that Price and an accomplice stole money from
Surratt, were armed with a deadly weapon, and inflicted death upon the victim. Thus, under
an accomplice-liability theory, we hold that substantial evidence supported Price’s
aggravated-robbery conviction.
III. Illegal Sentence
Next, Price argues that the circuit court erred by sentencing him as a habitual
offender to a term of life imprisonment, pursuant to Arkansas Code Annotated section 5-4-
501(d)(1) (Supp. 2017), because he had two prior convictions for crimes that he had
committed as a minor. Price committed residential burglary at age seventeen and aggravated
robbery at age sixteen. In both instances, he was tried as an adult. Price now contends that
8 his sentence is illegal and violates his Eighth Amendment rights because the two convictions
for the crimes that he committed as a juvenile cannot now be used to confer a life sentence.
In Wilson v. State, 2017 Ark. 217, 521 S.W.3d 123, we affirmed Wilson’s sentence
as a statutorily mandated term of life imprisonment as a defendant who had been convicted
of aggravated robbery and had previously been convicted as an adult of two felonies
involving violence. In Wilson, we recognized the following line of landmark cases from the
Supreme Court of the United States:
In support of his contention, Wilson cites to Miller v. Alabama, 567 U.S. 460, 465 (2012), which held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” See also Graham v. Florida, 560 U.S. 48, 80 (2010) (holding that the Eighth Amendment prohibits a sentence of life without parole for juveniles convicted of nonhomicide offenses); Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that imposing the death penalty on juveniles violates the Eighth Amendment). In Miller, the Court observed that children are constitutionally different from adults for purposes of sentencing because juveniles have diminished culpability and greater prospects for reform and are thus less deserving of the most severe punishments. Miller, 567 U.S. at 471–72. The Court further observed that mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features. Id. at 478. The Court concluded that the “Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” because by “making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id. at 479.
Wilson, 2017 Ark. 217, at 6–7, 521 S.W.3d at 127. Ultimately, we held that a conviction
imposed on a juvenile sentenced as an adult may be used as the basis for an increased penalty
imposed under the habitual-offender statute. Id. at 8, 521 S.W.3d at 128.
In the case at bar, Price committed two prior violent felonies as a minor but was tried
as an adult. The State introduced the two judgment-and-commitment orders reflecting
9 these two convictions, and the circuit court sentenced him on this basis. Based on our
holding in Wilson, 2017 Ark. 217, 521 S.W.3d 123, we conclude that the circuit court did
not err in admitting these two prior convictions when considering his status as a habitual
offender. Further, the record reveals that, at sentencing, both parties acknowledged that
Price would receive an automatic life sentence for being a “three striker” pursuant to section
5-4-501(d)(1).1 Therefore, we conclude that the circuit court properly admitted the
evidence of Price’s two prior convictions at sentencing.
IV. Motion to Suppress
For the last point on appeal, Price argues that the circuit court erred in denying his
motion to suppress and that the admission of his statement violates his rights pursuant to the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Specifically,
Price contends that the circuit court erred in allowing the jury to hear a portion of his taped
statement during which he requested an attorney and then an officer terminating the
interview. Price asserts that the circuit court abused its discretion in refusing to redact that
portion of his statement to police.
Prior to trial, Price filed a motion to suppress a statement made during his custodial
interrogation by the Pine Bluff Police Department. On May 15, 2018, the circuit court held
a hearing on Price’s motion to suppress. Detective Banks testified that he met Price at the
Pulaski County Detention Center, Mirandized him, took a statement, and recorded the
1 At sentencing, Price also made an ex post facto argument but abandoned that argument on appeal. See Chambers v. State, 2012 Ark. 407, 424 S.W.3d 296 (arguments raised below but not on appeal are considered abandoned).
10 interview. Toward the end of the interview, the following colloquy occurred between
Detective Banks and Price:
DETECTIVE BANKS: How did you get to Little Rock?
PRICE: I had—let me see, man. I just need—I want to [sic] my lawyer cause I see—I don’t know want to implement nobody in this cause they didn’t know, man. You know what I’m saying. They didn’t know.
DETECTIVE BANKS: All right. The time is 18:10. This concludes the interview.
During Banks’s testimony, the circuit court admitted into evidence the recorded
interview with Price and the Miranda-rights form that Price signed during the interview.
Banks testified that Price did not appear to be intoxicated or under the influence of any
drugs and that he did not threaten or coerce Price in any way. The court also admitted into
evidence a Miranda-rights form that Price had signed. At the conclusion of the hearing, the
circuit court denied his motion to suppress the statement.
Prior to trial, Price moved the circuit court to redact a portion of his statement,
stating, “In [Price’s] statement at the end, . . . he invokes his right to have an attorney. And
I believe that’s a comment [the detective terminating the interview] on [his] right to invoke
his [F]ifth [A]mendment right.” The State responded, “[Price] could stop questioning at any
time and have a lawyer. And that’s exactly what he did.” The circuit court denied the
motion to redact portions of the statement. At trial, Price renewed his motion, which the
circuit court denied.
While Price couches the argument as a suppression issue, it actually involves the
circuit court’s decision to redact a portion of Price’s taped statement. The decision to admit
11 or exclude evidence is within the sound discretion of the circuit court, and we will not
reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse
of discretion. MacKool v. State, 365 Ark. 416, 443, 231 S.W.3d 676, 697 (2006) (citing
Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005)).
In this instance, Price requested an attorney and exercised his right to remain silent,
which the detective acknowledged by terminating the interview. We find no prejudice in
this instance, and absent a showing of prejudice, we will not reverse. See MacKool, 365 Ark.
416, 231 S.W.3d 676. Thus, we hold that the circuit court properly denied Price’s motion
to suppress his statement. Accordingly, we affirm.
V. Rule 4-3(i)
Because Price received a life sentence, this court, in compliance with Arkansas
Supreme Court Rule 4-3(i) (2019), has examined the record for all objections, motions,
and requests made by either party that were decided adversely to Price. No prejudicial error
has been found. We therefore affirm.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. Evidence of a defendant’s
decision to exercise his Miranda rights should not be part of the prosecution’s case-in-chief.
For this reason, I would reverse Price’s conviction and remand for a new trial.
Over half a century ago, the Supreme Court of the United States decided Miranda v.
Arizona, 384 U.S. 436 (1966). There, the Court held that certain rights afforded to the
12 accused by the United States Constitution are so important that authorities must apprise the
accused of those rights before subjecting him or her to a custodial interrogation:
To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
Miranda, 384 U.S. at 478–79 (emphasis added).
Since Miranda, the Supreme Court has held that the prosecution may not use one’s
decision to exercise his or her Miranda rights as evidence against that person at trial.
“Implicit” within the Miranda warnings is that exercising the right to silence “will carry no
penalty.” Doyle v. Ohio, 426 U.S. 610, 618 (1976). Prosecutorial tactics aiming to draw the
jury’s attention to a defendant’s decision not to engage with those who would interrogate
him are inherently prejudicial. “Silence in the wake of these warnings may be nothing more
than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly
ambiguous because of what the State is required to advise the person arrested.” Doyle, 426
U.S. at 617 (emphasis added) (reversing for new trial where prosecutor sought to impeach
13 defendant’s testimony at trial by questioning why defendant had not given exculpatory
information to the officers who arrested and interrogated him).
As far as the right-to-silence issue, this case is even more troubling than Doyle. There,
the attorneys for the State of Ohio were only arguing that a prosecutor should be able to
use a defendant’s pre-trial invocation of his Miranda rights for impeachment purposes during
the defendant’s cross-examination. 426 U.S. at 617 (“Thus, although the State does not suggest
petitioners’ silence could be used as evidence of guilt, it contends that the need to present to the
jury all information relevant to the truth of petitioners’ exculpatory story fully justifies the
cross-examination that is at issue.”) (emphasis added). Despite the State of Ohio’s arguments
to the contrary, the Supreme Court concluded that the prosecutor’s opportunity for cross-
examination does not outweigh the due process guarantees of Miranda. Id. (“Despite the
importance of cross-examination, we have concluded that the Miranda decision compels
rejection of the State’s position.”). But while the attorneys for the State of Ohio in Doyle
were not willing to go so far as to argue that a prosecutor should be allowed to use the
exercise of one’s Miranda rights as evidence of guilt, that is precisely what happened here in
Price’s case.
The State did not use Price’s decision to stop the interview and speak with his
attorney for impeachment purposes on cross-examination; the prosecution presented this
evidence during its case-in-chief. Not only was the prosecution allowed to play Price’s
recorded interview with Detective Banks in its entirety (including the end where Price
invokes his Miranda rights), but the prosecutor continued to draw attention to Price’s
Miranda invocation during Detective Banks’s direct examination:
14 PROSECUTOR: Okay. I noted that you shut down that interview fairly quickly. What was the reason for that?
DETECTIVE: He requests his attorney.
...
PROSECUTOR: Okay. And he never did explain how he got to Little Rock?
DETECTIVE: No. He—like I say, he requested his attorney, so I stopped it right there. R. 618.
The prejudice is plain. The State used Price’s decision to exercise his constitutional
rights as inculpatory evidence—consciousness of guilt, an effort to limit the investigation,
etc. The only logical basis for drawing attention to these circumstances was to give the jury
the impression that Price was guilty of something; otherwise, why did Price not simply
answer the detective’s questions? The charges at issue here are serious, but the testimony
and evidence offered to satisfy the necessary elements for those charges was disputed.
Moreover, the rights of the State in criminal prosecutions are limited by the rights
guaranteed to citizens by the Constitution. Parading Price’s invocation of his constitutional
rights before the jury to create an inference of guilt deprived Price of a fair trial, and this
error cannot be considered harmless.
I dissent.
Bill Luppen, for appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.