Lewis v. State ( 2017 )

Cite as 2017 Ark. App. 442
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-533
Opinion Delivered September 13, 2017
APPEAL FROM THE PULASKI
KEENAN LAMONTE LEWIS COUNTY CIRCUIT COURT,
APPELLANT SEVENTH DIVISION
[NO. 60CR-14-2002]
V.
HONORABLE BARRY SIMS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
DAVID M. GLOVER, Judge
Appellant Keenan Lewis was convicted of first-degree murder in the shooting death
of Jason Harris. He was sentenced to thirty-one years’ imprisonment, with an additional
consecutive fifteen-year sentence for use of a firearm during the murder. On appeal, Lewis
raises three major points, with several subpoints: (1) the circuit court abused its discretion
by allowing the State to question Bree Hood, on redirect examination, about prior specific
instances of conduct on redirect examination; (2) the circuit court erred by refusing to allow
Lewis to testify about his knowledge of Harris’s gang affiliation; and (3) there was insufficient
evidence to support the conviction because Lewis proved he was justified in shooting Harris
in self-defense. 1 We affirm.
1
In Lewis v. State, 2017 Ark. App. 191, this court ordered rebriefing due to abstract
deficiencies; those issues have now been corrected.
Cite as 2017 Ark. App. 442
On April 29, 2014, Harris and his girlfriend, Jessica White, were visiting friends at
an apartment complex on Sanford Drive in Little Rock. Shortly after Harris arrived, Lewis
walked from a second apartment complex across the street and approached Harris. White
testified she heard Harris ask Lewis if he knew him and if they had a problem, heard three
gunshots, and saw Lewis leave in a black sedan. White denied Harris had said anything
threatening to Lewis or had a gun on his person.
A resident of the apartment complex, Levell Crump, who knew Harris by the
nickname “Dreads,” witnessed the shooting. Crump explained he saw a person who looked
like Lewis with his arm fully extended, pointing a gun at Harris’s head; heard a few “quick
loud words” from the man holding the gun; and then heard the gun fire. Crump described
Harris as crouched down in a defensive position, leaning away from the person holding the
gun, when he was shot. Crump testified Harris had a gentle disposition, was a non-
threatening person, and he did not hear Harris say anything aggressive to the shooter.
Bree Hood, Lewis’s girlfriend, was called as a witness for the State; she testified she
did not witness the shooting because she was inside their apartment, but that she did hear
gunshots outside. Hood said she did not know Lewis carried a gun. Hood did not know
Harris, but she said Harris had come to their door approximately a month before the
shooting occurred and talked to Lewis; while she did not know what was said, she testified
it scared Lewis and made him nervous. Hood stated that sometimes when she and Lewis
were leaving the apartment, Harris would make Blood gang-affiliation sounds and point at
Lewis, but Harris never made any statements directly to her. However, Hood claimed Harris
would say things to her daughter that scared her while she was walking to and from the bus
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stop. Hood testified she never called police about any of the incidents because she did not
want to be seen talking to the police because “snitches get stitches.”
Dr. Charles Kokes, the medical examiner who performed Harris’s autopsy, testified
that Harris was hit by nine bullets. It was his testimony that two of the wounds—one that
entered through the left arm and injured the aorta, lodging in Harris’s thoracic spine, and
the other that entered the right chest and passed through the heart—by themselves would
have been fatal. Additionally, Harris was shot through the left cheek and six times in his
lower extremities; the wounds to his lower extremities were incurred while Harris was lying
on the ground.
Hood was also called as a witness for the defense. She testified that a lot of apartments
were being broken into, her children were fearful about incidents that occurred while they
were coming from and going to school, and while she and Lewis had talked about moving,
they could not afford to do so at the time. Breanna Small, Hood’s daughter, confirmed she
had encountered Harris, whom she knew as “Dreads,” as she walked to and from her bus
stop. She said Harris had asked her name and age, and once he asked her where her
“punkass” daddy was; she was uncomfortable with these interactions, which she said began
to happen out of the blue.
Lewis testified in his own defense. According to Lewis, the first time he encountered
Harris, he saw him coming out of an apartment with a television. Lewis surmised Harris
had broken into the apartment, and he said Harris knew he had seen him. Lewis was also
concerned that Harris was talking to Breanna. Lewis said the next time he saw Harris was
when Harris came to his apartment a few weeks before the shooting, and at that time, Harris
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had a gun strapped to his hip and made threats that scared him, including statements that he
would kill Lewis. Lewis indicated the threats were gang related. On the day of the shooting,
Lewis said he had decided to talk to Harris “man-to-man” to resolve the situation. Although
Lewis stated he had no intent other than to talk, he admitted he took a gun with him for
self-protection, but he did not intend to use it. Lewis testified that when he confronted
Harris, Harris became offensive and aggressive, and the discussion became an argument.
Lewis claimed Harris had reached for his gun, and Lewis had shot him because he believed
Harris was about to kill him.
Self-Defense
Though it is his third point, we must consider Lewis’s sufficiency argument first on
appeal, as preservation of Lewis’s right against double jeopardy requires our court to consider
challenges to the sufficiency of the evidence before alleged trial error is considered, even if
the sufficiency-of-the-evidence issue is not presented as the first issue on appeal. See LeFever
v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). In reviewing a challenge to the sufficiency
of the evidence, we view the evidence in the light most favorable to the State, considering
only the evidence supporting the verdict, and affirm if there is substantial evidence to
support the conviction. Taylor v. State, 2017 Ark. App. 331, ___ S.W.3d ___. Substantial
evidence is evidence 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.
Id. Witness credibility and the weighing of evidence are matters for the finder of fact, who
is free to believe all or part of any witness’s testimony and whose duty it is to resolve
questions of conflicting testimony and inconsistent evidence. Id.
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Lewis argues he proved the justification of self-defense because he possessed a
reasonable belief Harris was about to use deadly force against him, and therefore, there was
insufficient evidence to support his conviction for murder in the first degree. The State
contends Lewis’s sufficiency argument is not preserved for appellate review; we agree.
Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides that, in a jury
trial, a directed-verdict motion must be made both at the close of the prosecution’s evidence
and at the close of all the evidence, and such motion shall state the specific grounds therefor.
Subsection (c) of Rule 33.1 requires a directed-verdict motion to specify in what respect
the evidence is deficient, as a motion merely stating that the evidence is insufficient does
not preserve for appellate purposes issues relating to a specific deficiency, such as insufficient
proof on the elements of the offense; the failure to challenge the sufficiency of the evidence
in the time and manner required in Rule 33.1(a) constitutes a waiver of any question
pertaining to the sufficiency of the evidence to support the verdict.
Lewis’s counsel made the following directed-verdict motion at the close of the State’s
case:
Your Honor, I move for a directed verdict on the first-degree murder. There
wasn’t—and I just deal with the ones that don’t count first—the purpose of causing
the death, purpose of causing death of another person, Mr. Lewis caused the death
of Jason Harris. There’s—the State didn’t meet their burden that, one, he caused the
death of Mr. Harris. Two, that Mr. Lewis was identified as a person. They didn’t
prove that he had the purpose to kill Mr. Harris. And Judge, I can do them all three,
first degree, second degree, third degree—I mean first degree, second degree and
manslaughter.
The State has failed to meet their burden that Keenan Lewis under
circumstances manifesting extreme indifference to the value of human life caused the
death of Jason Harris there. They haven’t touched on every element. They haven’t
shown extreme indifference. They haven’t shown that he caused the death. They
have not made a prima facie case on second degree. And as it relates to manslaughter
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they haven’t proved that he under reckless circumstances caused the death of Jason
Harris.
Specifically, on all of them there’s no testimony that there was a crime going
on, that there was physical force being used that would cause the death. They have
not proved that he was fleeing, trying to do a crime. They have not proved, I mean,
they’ve proven it but they have not made a prima facie case on each and every
element. So I’d move for a directed verdict on those. And they haven’t proven that
he had a firearm so I’d move to dismiss all that.
The circuit court denied Lewis’s motions. After the close of all the evidence, Lewis’s counsel
renewed his directed-verdict motions, stating:
The Defense rests. We would renew our motion. The State has not made a
prima facie case on first-degree murder, on second-degree and on manslaughter.
One second. With the testimony that was given from the three witnesses it further
shows that the State hasn’t made every element on manslaughter on the second-
degree murder and on the first-degree murder and I’ll renew that with everything
that I argued in the first stage.
The circuit court also denied Lewis’s renewed directed-verdict motions.
A person is justified in using deadly physical force upon another person if the person
reasonably believes that the other person is committing or about to commit a felony
involving force or violence; using or about to use unlawful deadly physical force; or
imminently endangering the person’s life or imminently about to victimize the person as
described in Arkansas Code Annotated section 9-15-103 from the continuation of a pattern
of domestic abuse. Ark. Code Ann. § 5-2-607(a) (Supp. 2015). A person may not use deadly
force in self-defense if the person knows he or she can avoid the necessity of using deadly
force by retreating or, with complete safety, by surrendering possession of property to a
person claiming a lawful right to possession of the property. Ark. Code Ann. § 5-2-
607(b)(1)(A) and (2). However, a person is not required to retreat if the person is unable
to retreat with complete safety; if the person is in the person’s dwelling and was not the
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original aggressor; or if the person is a law enforcement officer or a person assisting at the
direction of a law enforcement officer. Ark. Code Ann. § 5-2-607(b)(1)(B)(i)–(iii).
Justification becomes a defense when any evidence tending to support its existence is offered;
once raised, it becomes an element that must be disproved by the State beyond a reasonable
doubt. Green v. State, 2011 Ark. App. 700. Whether one is justified is largely a matter of the
defendant’s intent and is generally a question of fact. Id. A person is justified if he can show
the victim was the aggressor and the accused used all reasonable means within his power
and consistent with his safety to avoid the use of deadly force; critical to this inquiry is the
reasonableness of the accused’s apprehension that he was in danger of death or great bodily
harm, as well as whether the accused used all reasonable means consistent with personal
safety to avoid the use of deadly force. Id.
In Kinsey v. State, 2016 Ark. 393, 503 S.W.3d 772, our supreme court held that a
challenge to the sufficiency of the evidence regarding the issue of self-defense was not
preserved for appellate review when defense counsel’s motions for directed verdict on the
issue of self-defense were, “Also with regard to self-defense, the State had not disproven
that,” and “[T]he State has failed to negate self-defense, and he should be acquitted of
everything.” The Kinsey court refused to reach the merits of the sufficiency argument,
holding that while Kinsey generally argued the State failed to negate self-defense, he failed
to specifically identify how the State’s proof was insufficient to meet its burden. In the
present case, Lewis made no directed-verdict motion to the circuit court that even
mentioned self-defense or the elements the State failed to negate. For this reason, Lewis’s
sufficiency argument is not preserved for appeal.
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Prior-Conduct Challenges under Rule 404(b) and Rule 608(b)
Lewis makes multiple arguments under his second point on appeal—the circuit court
abused its discretion in allowing the State to question Bree Hood about prior specific
instances of conduct on redirect examination. This point of appeal centers on Hood’s
testimony during the State’s case, when the State called Hood as a witness in its case-in-
chief and asked Hood if she had ever called the police regarding any of the problems she,
Lewis, or her children allegedly had with Harris; Hood testified she did not because she did
not want to be seen talking to the police because “snitches got stitches.”
On cross-examination by Lewis’s attorney, Hood testified she did not run to the
police if someone threatened her because the police would not come solve problems where
she lived; she said when she tried to talk to the prosecutor about Harris coming to her door
and threatening her and Lewis, she was cut off and was asked questions about whether Lewis
had shot Harris. Hood testified she did not know of Lewis having a criminal record of any
kind and she had not known him to have ever committed any crime.
On redirect examination, Hood stated she had never felt comfortable calling the
police about anything, and Lewis had never committed any horrendous crime that she knew
of. The State then argued that the question about whether Lewis was a person who
committed crimes, and Hood’s answer that she had not known him to commit any crime,
opened the door to previous incidents of conduct by Lewis, including previous incident
reports and calls made to the police by Hood, including a 2009 incident where Lewis struck
Hood in the face, a 2009 incident where Lewis threatened to kill Hood, a 2010 incident
where Lewis punched Hood in the face and accused her of cheating on him, and a 2011
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incident where Hood called the police to report Lewis had threatened to beat her and told
her he would return and kill everyone at the house. The State alleged this evidence was
direct impeachment of her testimony that she had never contacted the police. Lewis’s
attorney disagreed, arguing that Rule 608 did not allow specific instances of conduct to
attack a witness’s credibility to be proved by extrinsic evidence, except for a sex-crime
conviction; he further argued that the State could not prove Hood was the person who had
made the phone calls to the police, and that such evidence was highly prejudicial. Lewis’s
attorney contended that the State was allowed to ask Hood if she had called the police, but
it was stuck with Hood’s answer and any further inquiry was impermissible. The State
argued it should be allowed to ask Hood about her previous calls to the police, as Hood had
testified she did not call the police when Harris came to their door and threatened them,
but she had called the police regarding previous incidents involving her and Lewis;
furthermore, Hood had testified that Lewis was not someone who committed crimes. The
circuit court ruled it would allow the State to question Hood about the incidents between
her and Lewis. When the State questioned Hood about the incidents, Hood testified that in
all those incidents, she was not the one who called the police; rather, it was her mother.
Lewis breaks this point of appeal into two subheadings. Under subheading A, he
makes three arguments regarding Rule 404(b) of the Arkansas Rules of Evidence:
(1) the circuit court erred in finding Rule 404(b) of the Arkansas Rules of
Evidence was not implicated;
(2) because Rule 404(b) was implicated by the State’s line of questioning,
the evidence should have been excluded because it was not independently relevant
to prove a material point related to Lewis’s murder charge; and
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(3) because Rule 404(b) was implicated, the probative value of such character
evidence was substantially outweighed by the danger of unfair prejudice.
Under subheading B, he makes five separate arguments that the circuit court erred
in permitting the State to question Bree Hood on redirect examination about prior specific
instances of conduct under Rule 608(b) of the Arkansas Rules of Evidence:
(1) the State’s final three questions during Hood’s redirect examination were
not asked in good faith;
(2) the final three questions were not related to her character for truthfulness
or untruthfulness;
(3) it was error to allow the State to impeach Hood under [Rule] 608(b)
because the evidence was offered on redirect examination rather than cross-
examination as required by the rule;
(4) the probative value of the impeachment evidence was far outweighed by
its prejudicial effect; and
(5) once Hood testified that her mother, and not her, had called police in the
past, the State should not have been allowed to ask about other alleged calls she made
to the police.
Some of Lewis’s arguments under these subheadings are not preserved for appellate
review. To preserve an argument for review on appeal, there must be a specific objection
made to the circuit court that is sufficient to apprise it of the particular error alleged; our
court will not address arguments made for the first time on appeal. Maciel v. State, 2016 Ark.
App. 413, 501 S.W.3d 847. A party is bound by the scope and nature of the arguments
made at trial and may not change the grounds for an objection on appeal. Id. Furthermore,
a contemporaneous objection is required to preserve an issue for appeal. Pascuzzi v. State,
2016 Ark. App. 213, 489 S.W.3d 709. Lewis’s arguments under A2, A3, B1, B2, B3, and
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B4 are not preserved for appellate review because no specific objections were made to the
circuit court, and these specific arguments are being made for the first time on appeal.
As to the issues that are preserved, we disagree that the circuit court’s decisions
regarding this evidence were in error. A determination to admit or exclude evidence will
not be reversed absent an abuse of the circuit court’s discretion, which requires that the
circuit court act improvidently, thoughtlessly, or without due consideration. Gillean v. State,
2015 Ark. App. 698, 478 S.W.3d 255.
Lewis’s first preserved argument under this point is that the circuit court erred in
finding that Rule 404(b) was not implicated by the State’s line of questioning. Rule 404(b)
provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show that he acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, preparation, plan, knowledge, identity, or
absence of mistake or accident.
Rule 404(b) was not implicated because the questions regarding the phone calls to
the police were not asked to show Hood’s character or conformity therewith—they were
asked to impeach Hood’s testimony that she would never call the police and that she had
not known Lewis to commit any crimes. There was no abuse of discretion in allowing this
testimony.
Rule 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking his
credibility, other than conviction of a crime as provided in Rule 609, may not be
proved by extrinsic evidence. They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into on cross-examination of
the witness (1) concerning his character for truthfulness or untruthfulness, or (2)
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concerning the character for truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has testified.
Lewis’s counsel opened the door to question Hood’s truthfulness when Hood
testified she would not call the police and she had not known Lewis to commit any crimes.
There were at least four instances when calls had been made to the police regarding Lewis’s
violence and threats of violence toward Hood. The State did not attempt to prove this by
extrinsic evidence; rather, it questioned Hood’s truthfulness by asking her directly about the
phone calls made regarding Lewis’s violence toward her. There was no abuse of discretion
in allowing this line of questioning.
Even if the circuit court had erred in admitting this evidence, it would not provide
a basis for reversal, as any error concerning this line of questioning was harmless. When the
evidence of guilt is overwhelming and the error is slight, the error can be declared harmless
and the conviction can be affirmed. Gillean, supra. Here, the first prong of the harmless-
error analysis—overwhelming evidence of guilt—was met. Jessica White, Harris’s girlfriend,
testified Lewis walked over to Harris and shot him; she also testified Harris did not have a
gun. Levell Crump, a resident of the apartment complex where Harris was shot, testified
Harris was shot by a man who looked like Lewis, the man was three feet away from Harris
with his arm holding the gun fully extended, the gun was aimed at Harris’s head, and Harris
was in a defensive position. Lastly, Lewis himself testified he shot Harris nine times.
Additionally, if there was error in admitting the line of questioning about Hood’s
phone calls to the police, any error was slight. In determining whether the error is harmless,
the appellate courts look to see if the appellant was prejudiced by the erroneously admitted
evidence; prejudice is not presumed, and a conviction will not be reversed absent an abuse
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of discretion. Gillean, supra. Lewis cannot show that he was prejudiced by the State’s line of
questioning. As discussed above, the evidence of guilt was overwhelming, and the admission
of impeachment evidence against Hood, if in error, was slight.
Gang Affiliation
In his last point on appeal, Lewis argues the circuit court erred in refusing to permit
him to testify regarding his knowledge of Harris’s gang affiliation. Specifically, he argues
that Rule 404(a)(2) of the Arkansas Rules of Evidence explicitly allows an accused to present
evidence of a pertinent character trait of the victim; citing Henderson v. State, 335 Ark. 346,
980 S.W.2d 266 (1998), Lewis contends Harris’s gang affiliation showed a violent character
that was relevant to his justification defense and his state of mind when he shot Harris. We
find no abuse of discretion in the circuit court’s ruling.
While testimony regarding the defendant’s and the victim’s affiliations with rival
gangs may be properly admissible to show motive for killing, the circuit court must balance
the probative value of the evidence against its prejudicial value pursuant to Rule 403 of the
Arkansas Rules of Evidence. Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996). A
determination to admit or exclude evidence will not be reversed absent an abuse of the
circuit court’s discretion, which requires the circuit court to act improvidently,
thoughtlessly, or without due consideration. Gillean, supra. Furthermore, a circuit court’s
evidentiary ruling will not be reversed absent a showing of prejudice. Id. No prejudice
results when evidence of gang affiliation would be merely cumulative. Reynolds v. State,
2016 Ark. 214, 492 S.W.3d 491.
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Lewis is unable to show that he was prejudiced by the circuit court’s refusal to allow
him to testify about Harris’s gang affiliation to the extent he wished. Lewis was allowed,
without objection, to testify that Harris made gang-related threats toward him. He further
testified Harris and David Gaines, who was known to Lewis as “OG,” which stands for
“Original Gangster,” were affiliated with the same gang, at which time the State objected;
after a bench conference, the circuit court simply told defense counsel to move on and leave
it alone. Furthermore, Bree Hood was allowed to testify without objection that Harris had
made Blood gang-affiliation “sounds” to Lewis in the weeks prior to the shooting. Lewis
was allowed to present evidence that Harris was affiliated with a gang; therefore, any further
evidence would merely be cumulative. There was no abuse of the circuit court’s discretion
in refusing to allow further evidence of any gang affiliation Harris might have had.
Affirmed.
WHITEAKER and HIXSON, JJ., agree.
The James Law Firm, by: William O. “Bill” James, Jr., and Michael Kiel Kaiser, for
appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.
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