Perry v. State , 453 S.W.3d 650 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-14-518
KIYWUAN PERRY Opinion Delivered December 18, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CR2012-1791]
STATE OF ARKANSAS HONORABLE HERBERT THOMAS
APPELLEE WRIGHT, JUDGE
AFFIRMED.
JIM HANNAH, Chief Justice
A Pulaski County jury convicted appellant, Kiywuan Perry, of capital murder and
aggravated robbery. The circuit court sentenced Perry to consecutive terms of life
imprisonment without parole for the capital-murder conviction and forty years for the
aggravated-robbery conviction. Perry contends on appeal that the circuit court erred in
denying his motion for directed verdict and abused its discretion in refusing to submit to the
jury his proffered verdict forms on accomplice liability. Because this is a criminal appeal in
which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to
Arkansas Supreme Court Rule 1-2(a)(2) (2014). We affirm.
Perry’s convictions stem from a robbery and murder that occurred at an El Chico
restaurant in Little Rock. According to the testimony and evidence presented at trial, on the
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evening of April 15, 2012, Perry and his brother, Zeckeya Perry,1 entered the restaurant
carrying guns and wearing hoodies, sunglasses, and bandanas. They forced all of the
restaurant’s customers and employees, except for waiter, Jesus Herrera, into a walk-in cooler.
While inside the cooler, the customers and employees heard gunshots, and upon exiting the
cooler, they found Herrera lying on the floor, fatally shot. An undetermined amount of
money was stolen from the restaurant manager’s office during the robbery.
On appeal, Perry first contends that the State presented insufficient evidence of his
guilt of both offenses at trial. Specifically, he claims that the testimony of four prosecution
witnesses—Quantez Dobbins, Kenya Smith, Adrian Brooks, and Tyrone Barbee—was “so
clearly unbelievable” that their testimony should be disregarded as a matter of law. Next,
Perry claims that the evidence at trial failed to corroborate the testimony of accomplices,
Dobbins, Smith, and Brooks.2
The State contends that this court cannot address Perry’s claims because they are not
preserved for our review. We agree. A challenge to the sufficiency of the evidence is
preserved by making a specific motion for directed verdict at the close of the State’s evidence
and at the close of all of the evidence. E.g., Maxwell v. State, 373 Ark. 553, 558, 285 S.W.3d
195, 199 (2008). Rule 33.1 of the Arkansas Rules of Criminal Procedure states in relevant
1
Zeckeya was tried and convicted of capital murder and aggravated robbery, for which he was
sentenced to terms of life imprisonment without parole and thirty-five years’ imprisonment,
respectively. This court affirmed Zeckeya’s convictions and sentences. See Perry v. State, 2014 Ark.
406.
2
The circuit court instructed the jury that Dobbins was an accomplice as a matter of law and
that Smith’s status as an accomplice was in dispute. The circuit court declined to give an accomplice-
liability instruction for Brooks.
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part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the
close of the evidence offered by the prosecution and at the close of all of the
evidence. A motion for directed verdict shall state the specific grounds therefor.
....
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times
and in the manner required in subsection[] (a) . . . will constitute a waiver of any
question pertaining to the sufficiency of the evidence to support the verdict . . . A
motion for directed verdict . . . based on insufficiency of the evidence must specify
the respect in which the evidence is deficient. A motion merely stating that the
evidence is insufficient does not preserve for appeal issues relating to a specific
deficiency such as insufficient proof on the elements of the offense. A renewal at the
close of all of the evidence of a previous motion for directed verdict . . . preserves the
issue of insufficient evidence for appeal. If for any reason a motion or a renewed
motion at the close of all of the evidence for directed verdict . . . is not ruled upon,
it is deemed denied for purposes of obtaining appellate review on the question of the
sufficiency of the evidence.
Ark. R. Crim. P. 33.1(a), (c) (2014). “The rationale behind this rule is that ‘when specific
grounds are stated and the absent proof is pinpointed, the circuit court can either grant the
motion, or, if justice requires, allow the State to reopen its case and supply the missing
proof.’” Maxwell, 373 Ark. at 559, 285 S.W.3d at 200 (quoting Pinell v. State, 364 Ark. 353,
357, 219 S.W.3d 168, 171 (2005)).
A general motion for directed verdict that merely asserts that the State has failed to
prove its case is inadequate to preserve a sufficiency challenge for appeal. E.g., Rounsaville
v. State, 2009 Ark. 479, at 8, 346 S.W.3d 289, 294 (holding that defendant failed to make a
specific motion regarding the sufficiency of the evidence to prove the charges of kidnapping
and terroristic threatening when he argued at trial that he did not “believe [the State] made
a prima facie case”); Eastin v. State, 370 Ark. 10, 15, 257 S.W.3d 58, 62–63 (2007)
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(concluding that defendant’s sufficiency argument was not preserved for appeal when he
moved for directed verdict “based on the fact that the State has not made a prima facie case”
and that he should be acquitted “based on lack of proof”); Travis v. State, 328 Ark. 442,
446–48, 944 S.W.2d 96, 97–98 (1997) (holding that defendant’s argument in directed-verdict
motion that the State had not presented evidence to “meet their burden on both counts of
the residential burglary and the rape charge” failed to specifically identify the proof of the
element of the crime that was alleged to have been missing).
At trial, Perry made a general motion for directed verdict, but he did not raise the
specific issues that he now raises on appeal. Rather, at the close of the State’s case, which was
also the close of evidence, defense counsel made the following motion: “Your Honor, we’d
ask for a directed verdict of acquittal. That the government hasn’t presented enough evidence
to take the case to the jury. It’s insufficient for that.”
Perry’s general motion, which failed to specify any deficiencies in the State’s proof,
was inadequate to preserve for appellate review the specific challenges to the sufficiency of
the evidence he now raises on appeal. E.g., Binemy v. State, 374 Ark. 232, 236–37, 287
S.W.3d 551, 555 (2008). In addition, we note that, although Perry received a sentence of life
imprisonment for his capital-murder conviction, and that Arkansas Supreme Court Rule 4-
3(i) (2014) requires us to review the record for error in all life and death cases, this review
presupposes that a proper objection was made at trial. See Webb v. State, 327 Ark. 51, 60, 938
S.W.2d 806, 811 (1997). When an appellant fails to make a specific motion for directed
verdict indicating the particular deficiencies in the State’s proof, it is as if he failed to object
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at all, and that failure below precludes our review of the sufficiency of the evidence on
appeal. Webb, 327 Ark. at 60, 938 S.W.2d at 812.
Perry next contends that the circuit court abused its discretion in refusing to submit
to the jury his proffered nonmodel-verdict forms on accomplice liability. At trial, Perry
requested that the circuit court instruct the jury with the disputed-accomplice-liability
instruction for witnesses Smith and Brooks. The circuit court gave the instruction for Smith,
but it refused to give the instruction for Brooks, concluding that there was not evidence from
which the jury could conclude that Brooks was an accomplice. Thereafter, Perry requested
that the circuit court submit to the jury an interrogatory verdict form on which it would
indicate whether it found Smith to be an accomplice. The circuit court denied Perry’s
request. Perry then proffered interrogatory-verdict forms as to both Smith and Brooks.
On appeal, Perry contends that the circuit court committed reversible error when it
refused to submit to the jury a verdict form on which it would have indicated whether it
found that Smith was an accomplice.3 At trial, the circuit court gave the disputed-
accomplice-liability instruction, Arkansas Model Jury Instruction—Criminal 2d 403, for
Smith:
A person cannot be convicted of a felony upon the uncorroborated testimony of an
accomplice.
3
Perry does not challenge the circuit court’s ruling that there was not evidence from which
the jury could conclude that Brooks was an accomplice; therefore, he has abandoned his argument
that Brooks required a disputed-accomplice-liability instruction. For that reason, we do not consider
Perry’s argument that the circuit court should have submitted to the jury an accomplice-liability
verdict form for Brooks.
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An accomplice is one who directly participates in the commission of an offense or
who, with the purpose of promoting or facilitating the commission of an offense:
Solicits, advises, encourages or coerces another person to commit it; or aids, agrees to
aid or attempts to aid another person in planning or committing it.
It is contended that the witness, Kenya Smith, was an accomplice. If you find that she
was, then Kiywuan Perry cannot be convicted upon testimony of that witness, unless
that testimony is corroborated by other evidence tending to connect Kiywuan Perry
with the commission of the offenses.
Evidence is not sufficient to corroborate the testimony of an accomplice if it merely
shows that the offenses were committed and the circumstances of the commission.
The sufficiency of the corroborating evidence is for you to determine.
Perry claims that, because Smith’s status as an accomplice was in dispute, he was
entitled to have the following verdict form submitted to the jury:
Verdict Form
Interrogatory Verdict No. 1
We the jury find that:
_____ Kenya Smith was an accomplice to the crimes of capital murder and aggravated
robbery.
_____ Kenya Smith was not an accomplice to the crimes of capital murder and
aggravated robbery.
_____________________________
FOREPERSON
In assessing whether a circuit court should have submitted a proffered nonmodel-
verdict form to the jury, this court uses the same standard that it applies when considering
whether a proffered nonmodel jury instruction is warranted. See Love v. State, 281 Ark. 379,
383, 664 S.W.2d 457, 460 (1984). This court has held that nonmodel jury instructions are
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to be given only when the circuit court finds that the model instructions do not accurately
state the law or do not contain a necessary instruction on the subject. E.g., Bond v. State, 374
Ark. 332, 340, 288 S.W.3d 206, 212 (2008). Further, just because a proffered jury instruction
may be a correct statement of the law does not mean that a circuit court must give the
proffered instruction to the jury. Id., 288 S.W.3d at 212. This court will not reverse a circuit
court’s decision to give or reject an instruction unless the court abused its discretion. E.g.,
Clark v. State, 374 Ark. 292, 305, 287 S.W.3d 567, 577 (2008).
Here, Perry does not claim that the jury instructions did not accurately state the law
or that the jury lacked a necessary instruction. Indeed, at Perry’s request, the circuit court
gave the jury the model disputed-accomplice-liability instruction. Perry’s contention is that
the proffered nonmodel interrogatory-verdict form should have been given because the jury’s
completion of the form would have indicated whether Smith’s testimony required
corroboration. According to Perry, the interrogatory verdict form would assist this court in
determining whether there is sufficient evidence to support the convictions in this case.
Although Perry conceded at trial that he had found no authority to support his claim
that he was entitled to the nonmodel-verdict form he requested, he contends in his brief on
appeal that the circuit court “erroneously” denied his request for the verdict form and that
“the circuit court’s discretion did not extend to denying this request by the defense.” We do
not address this point because Perry fails to support it with cogent argument or citation to
relevant authority. It is well settled that assignments of error unsupported by convincing
argument or apposite authority will not be considered on appeal. See, e.g., Hale v. State, 343
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Ark. 62, 86, 31 S.W.3d 850, 865 (2000).
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 Perry, and no prejudicial
error was found.
Affirmed.
BAKER and HART, JJ., concur.
Omar Greene, for appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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