McGill v. State

Olly Neal, Judge, dissenting. Although I join in Judge Roaf s dissenting opinion, I must write separately to illuminate a point we all have apparently overlooked. The appellant here, Christopher McGill, a juvenile, was found guilty of a felony offense, and the majority can point only to the uncorroborated out-of-court statement of an accomplice as substantial evidence to support the conviction.

Arkansas Code Annotated § 16-89-111 (e)(1) (1987) provides that a felony conviction may not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the accused to the commission of the offense. Felony convictions supported only by uncorroborated accomplice testimony should be dismissed on appeal to avoid running afoul of the double jeopardy clause. See Williams v. State, 328 Ark. 487 , 944 S.W.2d 822 (1997).

The test for determining whether accomplice testimony is sufficiently corroborated to render it sufficiently reliable is whether, when the accomplice’s testimony is totally stricken, the remaining evidence independently establishes the crime and tends to connect the accused to its commission. Peeler v. State, 326 Ark. 423 , 932 S.W.2d 312 (1996). Here, without the accomplice’s testimony, the other evidence establishes that 1) the victim left her car keys with appellant and the accomplice; 2) a disinterested witness saw the accomplice driving the car; and 3) when the victim later returned to the school parking lot her car was “totalled.” Because there was uncontradicted testimony that the victim left her car keys with both appellant and the alleged accomplice, neither factor nor any combination thereof is sufficient to independently connect appellant to the commission of the crime. Because the testimony of Duggin, the alleged accomplice, was not corroborated, we should reverse and dismiss this appeal, consistently with our established practice when we find the evidence insufficient to sustain a conviction.

Andree Layton Roaf, Judge, dissenting. It is well settled that, because of double jeopardy considerations, this court must reverse and dismiss a criminal conviction where the evidence is insufficient to support the conviction. This has been the law of the land since 1978. See Pollard v. State, 264 Ark. 753 , 574 S.W.2d 656 (1978) (citing Burks v. United States, 437 U.S. 1 (1978) and Greene v. Massey, 437 U.S. 19 (1978)). It is also axiomatic that this court may reduce the conviction to a lesser-included offense where the trial court erred by refusing to give a requested instruction on the lesser-included offense. See Hamilton v. State, 262 Ark. 366 , 556 S.W.2d 884 (1977).

However, the disposition of this case presents an example of a third and apparently equally well-established tenet of appellate review in Arkansas — that we may, in the absence of other trial error, reduce a conviction gained upon insufficient evidence to a lesser-included offense not charged, requested, or even mentioned at trial, in lieu of reversing the conviction outright. Tigue v. State, 319 Ark, 147, 889 S.W.2d 760 (1994). This is to be distinguished from the power of our reviewing courts to modify a sentence or punishment deemed excessive or illegal. Hudgens v. State, 324 Ark. 169 , 919 S.W.2d 939 (1996).

Much could be said about the origins and evolution of this authority; I will not attempt to do so, in the interest of holding the reader’s attention. Suffice it to say that the distinction between reducing a sentence and reducing the degree of the offense has been somewhat blurred in the past. The supreme court has done one or the other, or a combination of the two, commencing in the nineteenth century, see Brown v. State, 34 Ark. 232 , (1879), Simpson v. State, 56 Ark. 8 , 19 S.W. 99 (1892), and continuing on into the decades that followed. Noble v. State, 75 Ark. 246 , 87 S.W. 120 (1905); King v. State, 117 Ark. 82 , 173 S.W. 852 (1915); Brooks v. State, 141 Ark. 57 , 216 S.W. 705 (1919). We have persisted in reducing convictions, such as McGill’s, during the years where we had the option of remanding such cases for new trial, see Dixon v. State, 260 Ark. 857 , 545 S.W.2d 606 (1977); Bailey v. State, 206 Ark. 121 , 173 S.W.2d 1010 (1943); and after 1978, when we did not. See Tigue v. State, supra; Bishop v. State, 294 Ark. 303 , 742 S.W.2d 911 (1988); Mills v. State, 270 Ark. 141 , 603 S.W.2d 416 (1980).

The majority relies upon Tigue, supra, for the authority to reduce McGill’s conviction in this case. Tigue in turn relied upon Trotter v. State, 290 Ark. 269 , 719 S.W.2d 268 (1994). Unfortunately, both Tigue and Trotter quote from Dixon v. State, supra, a 1977 pre-Pollard decision which stated that where the evidence is insufficient to sustain a conviction for a particular crime, the court may

reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it. . . at some intermediate point, remand the case to the trial court for the assessment of the penalty or grant a new trial either absolutely or conditionally.

Dixon, 260 Ark. at 862 , 545 S.W.2d at 609 (emphasis added). Of course, after 1978, this is no longer an accurate statement of the law.

Nevertheless, as it stands today, we are authorized by our supreme court to reduce a conviction when faced with the situation now confronting us and confronting young Mr. McGill. When we may do so is presumably solely within our discretion. In McGill’s case, we are prodded to employ this discretion by the State, most likely because it sees the handwriting on the wall for its conviction based upon first-degree criminal mischief. The State now recommends to us an alternative it did not present to McGill or to the trial court — we may find McGill guilty of second-degree criminal mischief.

Although both offenses are felonies because of the alleged value of the automobile that was totaled, McGill was adjudicated a delinquent because of his age and faces only two days’ incarceration in a juvenile detention center. However, our appellate courts have most often exercised the prerogative to reduce rather than dismiss a conviction when reversing felony convictions from both jury and bench trials.

It may well be that our courts have, since 1978, reversed and dismissed some criminal convictions based on insufficiency of the evidence because the State did not suggest in its appellee brief a lesser-included offense, and we did not ferret one out on our own. For criminal appellants as a whole, the glass may be half full rather than half empty. However, each case stands on its own, and each defendant is entitled to fair and equal treatment in light of our avowed dedication to the uniform administration of justice. See, e.g., State v. Zawodniak, 329 Ark. 179 , 946 S.W.2d 936 (1997).

In the case before us, the prosecutor has already exercised his considerable discretion in the proceedings below. I choose to exercise my much more limited discretion by casting my vote to reverse and dismiss this conviction.

Neal, J., joins this dissent.