Starling v. State

Cite as 2016 Ark. 20

SUPREME COURT OF ARKANSAS

No. CR-14-972

SERANDON STARLING Opinion Delivered January 28, 2016

APPELLANT

APPEAL FROM THE MILLER

V. COUNTY CIRCUIT COURT

[NO. 46CR-13-240]

STATE OF ARKANSAS HONORABLE JOE E. GRIFFIN,

APPELLEE JUDGE

AFFIRMED; MOTION TO

WITHDRAW GRANTED.

HOWARD W. BRILL, Chief Justice

Appellant Serandon Starling appeals from the sentencing order entered by the Miller

County Circuit Court reflecting his convictions and sentences for first-degree murder and

committing a terroristic act. Each offense was enhanced for employing a firearm, and Starling

was sentenced as a habitual offender to a total term of life imprisonment plus fifteen years.1

The attorney appointed to represent appellant on appeal has filed a motion to withdraw as

counsel and a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967) and

Arkansas Supreme Court Rule 4-3(k) (2015), asserting that the appeal is without merit. In

accordance with Rule 4-3(k)(2), our clerk furnished appellant with a copy of the brief.

1

Starling was sentenced to a term of life imprisonment for first-degree murder and a

term of life imprisonment for terroristic act, to be served concurrently. Starling’s firearm

enhancements were to be served consecutively to his life sentences but concurrent to each

other.

Cite as 2016 Ark. 20

Appellant submitted two pro se points for reversal, and the State has responded. Because

appellant received a sentence of life imprisonment, our jurisdiction is pursuant to Arkansas

Supreme Court Rule 1-2(a)(2) (2015). We find no reversible error and, therefore, affirm

appellant’s convictions and grant counsel’s motion to withdraw.

I. Facts

The following facts are adduced from the testimony and evidence presented at trial.

On April 18, 2013, Demetrica Satterwhite contacted Frank Starling, appellant’s brother

(“Frank”), and told him that Billy “Wild Bill” Hawkins, was interested in buying some crack

cocaine from him. According to Satterwhite, Wild Bill planned to sell the drugs to some men

from Ashdown. Satterwhite drove Frank, Wild Bill, and Aundrey Battle to a local

McDonald’s, where she saw her cousin, Andrew “P.J.” Cheatham. Satterwhite got out of

her car and went over to P.J.’s car to talk to him; Wild Bill, who had possession of the drugs,

followed her. Wild Bill then got in P.J.’s car, and the two of them drove off together.

Frank became angry when Wild Bill left with the drugs without paying for them and

accused Satterwhite of setting him up to get robbed. According to Satterwhite, Frank forced

her to drive Battle and him around town to look for P.J. and Wild Bill. During the pursuit

of P.J. and Wild Bill, Satterwhite stopped at Frank’s house and picked up Justin Benton. She

then drove to Brittany Baker’s house, where she saw a gold car parked outside, and picked

up Khyia Primm and Quanissa Johnson. Satterwhite, Frank, and the others stopped for gas

at a local convenience store, where Satterwhite said she saw the gold car again. Satterwhite

went into the store and saw appellant, whom she did not know. Satterwhite testified that

2

Cite as 2016 Ark. 20

appellant identified himself as Serandon and that she later learned that he was in the gold car.

Satterwhite walked out of the store, and one of her passengers saw P.J. drive by, so

Satterwhite and the driver of the gold car started following P.J.’s car. Satterwhite testified that

the driver of the gold car blocked off P.J.’s car on a side street and that she pulled up behind

P.J.’s car. Appellant got out of the gold car and went to P.J.’s car. Appellant shot at P.J.’s

vehicle, and one of the bullets struck P.J. in the forehead, killing him.

II. Adverse Rulings

A. Directed Verdict—Credibility

Counsel contends that the circuit court did not err in denying appellant’s motions for

directed verdict. On appeal, we treat a motion for directed verdict as a challenge to the

sufficiency of the evidence. E.g., Anderson v. State, 2011 Ark. 461, at 3, 385 S.W.3d 214, 217.

This court determines whether the verdict is supported by substantial evidence, direct or

circumstantial. Id., 385 S.W.3d at 218. Substantial evidence is evidence that is forceful

enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id.,

385 S.W.3d at 218. The evidence is viewed in the light most favorable to the verdict, and

only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 218.

A person commits first-degree murder if “[w]ith a purpose of causing the death of

another person, the person causes the death of another person.” Ark. Code Ann. § 5-10-

102(a)(2) (Repl. 2013). “A person commits a terroristic act if, while not in the commission

of a lawful act, the person [s]hoots at or in any manner projects an object at a conveyance

which is being operated or which is occupied by another person with the purpose to cause

3

Cite as 2016 Ark. 20

injury to another person or damage to property.” Ark. Code Ann. § 5-13-310(a)(1) (Repl.

2013). “A person acts purposely with respect to his or her conduct or a result of his or her

conduct when it is the person’s conscious object to engage in conduct of that nature or to

cause the result.” Ark. Code Ann. § 5-2-202(1) (Repl. 2013).

At trial, appellant moved for a directed verdict, contending that the State had

presented no credible evidence to maintain the charges. Specifically, appellant argued,

[W]e note the lack of credibility of witnesses due to their prior inconsistent statements

and motives to lie based on their testimony here in court and the fact that they had

charges pending or wanted to avoid having charges brought at all against them.

The State responded,

I would ask the court to recall the testimony of the witnesses, specifically not only the

law enforcement officers, but Demetrica Satterwhite, Phillip Blackwell, Shae Jones,

and Justin Benton who were all present at the time this shooting occurred.

Demetrica Satterwhite specifically testified that it was Serandon Starling who fired the

gun that killed P.J. Phillip Blackwell specifically stated that it was Serandon Starling

that fired the weapon. Shae Jones specifically stated that Serandon Starling had a

weapon that he produced from his waistband when he got out of the car and she saw

him with it again when he returned to the car. And Justin Benton stated that he saw

Serandon Starling retrieve a gun from his Camero [sic] before getting into the car. He

always carried a .45 and that he specifically recalled Serandon Starling shooting that

.45 striking P.J.’s car.

The bullet that was recovered from P.J.’s head was a .45 which can be directly linked

back to the gun that Mr. Starling possessed and shot.

Regarding their motive to testify, there are . . . no charges pending against Shae Jones

nor has there been any indication to her by the State that any charges would be

brought. Mr. Benton currently has charges pending and no agreements have been

made by the State with Mr. Benton. Demetrica Satterwhite has charges pending and

she specifically testified under oath that no promises have been made to her by the

State in exchange for her testimony. No plea bargains have been made by the State,

with the State in exchange for her testimony.

4

Cite as 2016 Ark. 20

Variances and discrepancies in the proof go to the weight or credibility of the

evidence and matters for the fact-finder to resolve. Marts v. State, 332 Ark. 628, 644, 968

S.W.2d 41, 49 (1998).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. E.g., Burley

v. State, 348 Ark. 422, 430, 73 S.W.3d 600, 605 (2002). Accordingly, when there is evidence

of a defendant’s guilt, even if it is conflicting, it is for the jury as fact-finder to resolve any

conflicts and inconsistencies; it is not for the court to resolve on a directed-verdict motion.

Marts, 332 Ark. at 644, 968 S.W.2d at 49; see also State v. Long, 311 Ark. 248, 251, 844

S.W.2d 302, 304 (1992) (stating that “when a trial court exceeds its duty to determine the

sufficiency of the evidence by judging the credibility of the evidence, it commits an error

that requires correction”).

In his directed-verdict motions, appellant did not specify which witnesses gave

inconsistent prior statements, which witnesses were motivated to lie because they had charges

pending, or which witnesses wanted to avoid charges. Nevertheless, we conclude that,

through the testimony and evidence presented at trial, the jury was apprised of the witnesses’

involvement in the crime.

Moreover, the jury heard testimony regarding whether witnesses had pending charges.

Satterwhite and Phillip Blackwell, who was a passenger in the gold car, testified that appellant

shot at P.J.’s vehicle. Satterwhite testified that she was incarcerated in the Miller County

Sheriff’s Department with a charge pending for first-degree murder. She stated that she was

testifying for the State but that the State had made her no promises and that she had not

5

Cite as 2016 Ark. 20

received a plea deal for her testimony. Shae Jones, appellant’s girlfriend, testified that she was

with appellant at the time of the murder, that appellant had a weapon that he produced from

his pocket when he got out of the car, and that she saw him with the gun when he returned

to the car. Justin Benton testified that he saw appellant shoot at P.J. Benton also testified that

he faced criminal charges for hindering apprehension in connection with the murder.

The jury has the sole authority to evaluate the credibility of evidence and to apportion

the weight to be given to the evidence. E.g., Smoak v. State, 2011 Ark. 529, at 6, 385 S.W.3d

257, 261. Viewing the evidence in the light most favorable to the verdict, we conclude that

it was reasonable for the jury to infer from the circumstances that appellant committed the

offenses of first-degree murder and terroristic act. We hold that the circuit court did not err

in denying appellant’s motions for directed verdict.

B. Jury Instruction—Reckless Manslaughter

At trial, the circuit court instructed the jury on first-degree murder and the lesser-

included offense of second-degree murder and refused appellant’s request to instruct the jury

on the lesser-included offense of reckless manslaughter. We have often stated that refusal to

give an instruction on a lesser-included offense is reversible error if the instruction is

supported by even the slightest evidence. E.g., Ellis v. State, 345 Ark. 415, 418, 47 S.W.3d

259, 260 (2001). However, we will affirm a trial court’s decision to exclude an instruction

on a lesser-included offense if there is no rational basis for giving the instruction. Id. at 418,

47 S.W.3d at 260.

Counsel contends that the circuit court did not err in refusing to instruct the jury on

6

Cite as 2016 Ark. 20

reckless manslaughter pursuant to Arkansas Code Annotated section 5-10-104(a)(3) (Repl.

2013), which states that a person commits manslaughter if the person recklessly causes the

death of another person. A person acts recklessly with respect to the attendant circumstances

or a result of his her conduct when the person consciously disregards a substantial and

unjustifiable risk that the attendant circumstances exist or the result will occur. Ark. Code

Ann. § 5-2-202(3)(A) (Repl. 2013). The risk must be of a nature and degree that disregard

of the risk constitutes a gross deviation from the standard of care that a reasonable person

would observe in the actor’s situation. Id. § 5-2-202(3)(B). In support of his request for the

manslaughter instruction, appellant argued at trial that testimony demonstrated that he chased

P.J. to “scare him” and that his intent was to “beat up” P.J., not to kill him. The State

argued that, although there was testimony that some of the “girls in the car may have wanted

[P.J.’s] ass whipped,” there was no testimony whatsoever that appellant intended only to

engage in a fistfight with P.J.

In this case, the jury was presented with evidence that appellant chased P.J., blocked

P.J.’s vehicle with his vehicle, and ran up to P.J.’s car, shooting once into the hood of the

car and a second time through the windshield of the car, killing P.J. We agree with counsel’s

contention that the circuit court did not err in refusing to instruct the jury on reckless

manslaughter. Because there was no rational basis for giving an instruction for reckless

manslaughter, we affirm the circuit court’s ruling.2

2

Counsel asserts that, because the circuit court instructed the jury on first-degree

murder and second-degree murder, and appellant was convicted of first-degree murder, then

any error committed by the circuit court in declining to instruct the jury on the lesser-

7

Cite as 2016 Ark. 20

C. Motion in Limine

Counsel contends that the circuit court did not err in overruling appellant’s objection

to the State’s motion in limine. Before trial, the State filed a motion in limine to exclude

evidence of P.J.’s past involvement in drug transactions and his reputation as a drug dealer.

After hearing arguments from the parties, the circuit court granted the State’s motion in

limine with respect to

the dates prior to the date in question or dates with other people even on the same

date if they didn’t involve these parties. But the circumstances surrounding the factual

basis, the facts concerning how this thing came about, or this case came about, would

certainly be part of this case. But prior days or prior events with separate parties that

are not otherwise involved in this case would be irrelevant.

“Relevant evidence” means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence. Ark. R. Evid. 401 (2015). Evidence which

is not relevant is not admissible. Ark. R. Evid. 402. The decision to admit or exclude

evidence is within the sound discretion of the circuit court, and we will not reverse that

decision absent a manifest abuse of discretion or absent a showing of prejudice. Bruner v.

State, 2013 Ark. 68, at 11, 426 S.W.3d 386, 393.

Here, the circuit court allowed extensive testimony about the drug deal between Wild

included offense of reckless manslaughter is cured by the skip rule. See Easter v. State, 306

Ark. 615, 620, 816 S.W.2d 602, 605 (1991) (“When a lesser included offense has been the

subject of an instruction, and the jury convicts of the greater offense, error resulting from

failure to give an instruction on another still lesser included offense is cured.”). Because we

hold that the circuit court did not err in refusing to instruct the jury on reckless

manslaughter, we need not engage in a skip-rule analysis. Here, there is no error to cure.

8

Cite as 2016 Ark. 20

Bill and Frank. The jury was made aware of the facts and circumstances leading up to P.J.’s

death. Specifically, the jury learned that P.J.’s death resulted from a drug deal gone bad

between Frank and Wild Bill. We hold that the circuit court did not abuse its discretion in

excluding evidence about P.J.’s past involvement in drug transactions and his reputation as

a drug dealer.

D. Other Adverse Rulings

Counsel has addressed the remaining adverse rulings.3 Having reviewed the record

and briefs, we agree with counsel that none of the rulings present a meritorious ground for

reversal.

III. Pro Se Points

A. Directed Verdict—Intent

Appellant contends that the circuit court erred in denying his motion for directed

verdict on the charge of first-degree murder because the State failed to establish that he

possessed the intent to purposely cause the death of another. The State contends that

appellant’s pro se sufficiency challenge is barred because appellant has changed the nature of

3

Over defense counsel’s hearsay objections, the circuit court allowed Satterwhite’s

testimony about her conversations with Wild Bill and Frank. Because this testimony was not

offered for the truth of the matter asserted, the circuit court did not err in overruling the

objections.

We agree with counsel’s assertion that we do not consider appellant’s pro se posttrial

motions because they are not preserved or our review. Appellant filed the pro se motions

after the notice of appeal had been filed, and the circuit court did not rule on the motions.

Even assuming the pro se motions were deemed denied by operation of law, see Ark. R.

App. P.–Crim. 2(b)(1), appellant did not file an amended notice of appeal to appeal the

denial of those motions, see Ark. R. App. P.–Crim. 2(b)(2).

9

Cite as 2016 Ark. 20

his sufficiency argument on appeal. We agree. At trial, appellant argued that there was no

credible evidence presented in the State’s case for the charges to be maintained. On appeal,

however, appellant contends that the State failed to prove that he intended to purposely

cause the death of P.J. A party is not permitted to change the scope and nature of a directed-

verdict motion on appeal. See Lamb v. State, 372 Ark. 277, 279, 275 S.W.3d 144, 146 (2008).

B. Jury Instruction—Extreme-Emotional-Disturbance Manslaughter

Appellant contends that the circuit court erred in refusing to instruct the jury on

extreme-emotional-disturbance manslaughter. At trial, appellant requested jury instructions

for the lesser-included offenses of second-degree murder and reckless manslaughter.

Appellant did not, however, request an instruction for extreme-emotional-disturbance

manslaughter.4 Consequently, we do not address appellant’s contention on appeal. See, e.g.,

White v. State, 370 Ark. 284, 294, 259 S.W.3d 410, 417 (2001) (stating that appellant’s failure

to request a jury instruction at trial precludes our review because we do not address issues

raised for the first time on appeal).

IV. Rule 4-3(i)

Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for

all objections, motions, and requests that were decided adversely to appellant, and no

4

A person commits manslaughter if the person causes the death of another person

under circumstances that would be murder, except that he or she causes the death under the

influence of extreme emotional disturbance for which there is reasonable excuse. Ark. Code

Ann. § 5-10-104(a)(1)(A). The reasonableness of the excuse is determined from the

viewpoint of a person in the actor’s situation under the circumstances as the actor believed

them to be. Id. § 5-10-104(a)(1)(B).

10

Cite as 2016 Ark. 20

prejudicial error has been found.

Affirmed; motion to withdraw granted.

BAKER and HART, JJ., dissent.

JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent because the

majority has not complied with the dictates of Anders v. California, 386 U.S. 738 (1967), and

its progeny. As this court recently explained, filing an Anders brief is permissible only when

an attorney has provided the client with a diligent and thorough search of the record for any

arguable claim that might support the client’s appeal, and after having identified all of the

potential adverse rulings, the attorney determines that an appeal from those rulings would be

“frivolous.” Her v. State, 2015 Ark. 914, 57 S.W.3d 659 (citing Penson v. Ohio, 488 U.S. 75

(1988)). In an Anders case, the standard is not whether the appellant has a an argument that

will result in a reversal of his or her conviction; it is whether it would be wholly

frivolous—essentially unethical—to argue a particular point. It has been my experience on

this court and on the court of appeals that more than ninety percent of all criminal appeals are

affirmed. At the same time, I am not aware of a single instance in which an attorney has been

sanctioned or even referred to the Arkansas Committee on Professional Conduct for making

an unsuccessful appellate argument, even when the issue was not preserved for review.

In my view, it would not be frivolous to challenge the circuit court’s refusal to give

a manslaughter instruction. A party is entitled to a jury instruction if there is any supporting

evidence for the instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003) (citing

Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002)). The standard of “any supporting

11

Cite as 2016 Ark. 20

evidence” is perhaps the lowest showing required in the law; it is reversible error to refuse to

give an instruction on a lesser-included offense when the instruction is supported by even the

slightest evidence. See Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001); Ellis v. State, 345

Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). This

court has said no right has been more zealously protected by this court than the right of an

accused to have the jury instructed on lesser-included offenses. Brown v. State, supra; Rainey

v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Robinson v. State, 269 Ark. 90, 598 S.W.2d

421 (1980). It is proper to affirm the trial court’s decision to exclude an instruction on a

lesser-included offense only if there is no rational basis for giving the instruction. Brown, supra.

The majority correctly notes that reckless manslaughter involves conduct whereby “a

person consciously disregards a substantial risk” that his conduct will result in the death of a

person. Yet, it discounts the testimony that appellant fired his gun at the victim’s car, without

specifically targeting the victim—one shot was aimed at the hood of the car, the other shot,

which killed the victim, was aimed at the windshield. Further, as the majority notes, there

was testimony that appellant intended to merely to scare the victim, not kill him. Thus, an

argument on appeal that the circuit court erred by refusing to give a reckless-manslaughter

instruction would not be frivolous.

I am mindful that the so-called “skip rule” could potentially have been invoked to

dispose of this particular issue. In my research, I found the skip rule used in our cases at least

fifteen times, but never in the Anders context. Indeed, decisions relying on the skip rule have

engendered a dissent and two concurrences, which indicates that this issue is not so well

12

Cite as 2016 Ark. 20

settled as to make an appellate argument about the entitlement to a reckless-manslaughter

instruction wholly frivolous.

Likewise, the circuit court’s refusal to give an extreme-disturbance-manslaughter

instruction would not be frivolous. For a jury to be instructed on extreme-disturbance

manslaughter, there must be evidence that the defendant killed the victim in the moment

following some kind of provocation, such as physical fighting, a threat, or brandishing a

weapon. Boyle v. State, 363 Ark. 356, 362, 214 S.W.3d 250, 253 (2005). I cannot ignore that

there was testimony that the victim had a gun in his hand when he was found dead. The

essence of brandishing a weapon is holding it in one’s hand. I am not aware of how a person

would be able to take hold of a weapon post mortem.

The majority’s contention that this issue, which came before the court as a pro se

point, need not be addressed, fails to comport with the Anders blueprint. Pro se parties who

are facing the withdrawal of their appellate counsel under Anders must only raise issues

requiring the attention of counsel. Ark. S. Ct. R. 4-3(k)(2). They need not be fully

developed appellate arguments—the pro se party already has appellate counsel. As for the

majority’s contention that the argument was not made below, preservation of this issue was

at least as solid as the reckless-manslaughter issue. It is disingenuous to suggest otherwise.

I would deny counsel’s motion to withdraw and order rebriefing in merit form.

BAKER, J., joins.

Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

13