"With great reluctance, the court finds insufficient evidence to convict the defendant," Circuit Court Judge Alan Epley ruled Friday, shortly after the state rested in the capital murder case against Damon Fuson. The directed verdict from the bench kept the case from a 14-member Western District jury that had heard two-and-a-half days of testimony in the case.
Fuson was one of four charged in the Dec. 1999 death of Grace Vowell, 93, a Green Forest widow killed in her bed with a hammer during a robbery. The other three have been convicted of, or pleaded to, first degree murder and are serving sentences of varying lengths.
Though the judge's ruling clears Fuson of charges stemming from Vowell's murder, he'll remain behind bars another two years on a parole violation on earlier, unrelated sexual abuse charges, according to his court-appointed attorney Jeff Rosensweig.
The hitch in the case for the prosecution is an Arkansas law which requires that testimony by accomplices in a crime be corroborated by others not involved. While the state had numerous law enforcement and forensic experts testify, there was no physical evidence linking any of the accused to the murder scene. The only testimony putting Fuson in Vowell's house in the early morning hours of Dec. 11, 1999 was by two accomplices, Donna Clark and Sony Weathereal.
Clark is the former girlfriend of Ron Garner, the alleged mastermind behind the scheme to rob Vowell of thousands of dollars rumored to be in her home. Garner took a key from his grandparents, who were long-time friends of Vowell's. Ten months after the murder, Clark implicated Garner in an anonymous letter to the county sheriff and prosecutor. The letter was traced to Clark, who was then subpoenaed.
According to special prosecutor Kent Holt, who argued the case for the state, without Clark's letter, the crime might have gone unsolved. Clark testified she stood lookout in her truck in the parking lot of the Sonic Drive In next to Vowell's house while Garner, Fuson, Allen Hudson and Weathereal went inside. She was granted immunity in exchange for truthful testimony.
Weathereal, 21, also cut a deal in exchange for testimony. He pleaded guilty to first degree murder and aggravated robbery and was sentenced to two 15-year sentences, one suspended, and two 10-year sentences on unrelated drug charges to run concurrently. He is expected to serve 10-15 years.
On the stand, Weathereal testified he served as lookout from the inside, watching from a living room window for any signals from Clark. A smudge on a mini-blind on that window was said to substantiate his testimony.
The two witnesses gave differing accounts of the incident. Both testified that Fuson and Weathereal borrowed Garner's car and left a party at Kimberly Hayes' Berryville home. Weathereal claimed the two returned to the party then left again with Clark, Garner and Hudson, eventually winding up at Vowell's house. While standing watch, Weathereal testified, he heard a thud and Fuson shouted get out. The four left the house and drove east to the twin bridge area, where Vowell's purse was later found. A short time later they stopped off Cisco Rd. where Weathereal said Hudson burned his shirt.
Clark testified that Fuson and Weathereal didn't return to the party and she and Garner went to look for them in her truck, finding them, with Hudson, in the parking lot of Bob's Market in Green Forest. From there, they proceeded in separate vehicles Sonic, where Fuson took a hammer from the trunk and the four men went into Vowell's house. When they returned, she and Garner returned to the party. She noticed blood on his pants and he told her someone got hurt, Clark said.
Though she spent most of Thursday afternoon on the stand, Clark did not initially testify that Fuson took the hammer from the truck, as she did in Hudson's trial last April. She was recalled to the stand Friday morning to give that testimony.
Both accomplices admitted to drug use, including regular methamphetamine consumption, and to lying previously under oath. Holt told the jury the two were being as honest as they could be and attributed inconsistencies in their stories to drug use and the fact they had been drinking heavily the night of the murder.
The two witnesses' testimony was similar, though not exactly the same, as testimony they gave in Hudson's trial. In that trial, two non-accomplice witnesses testified they'd heard Hudson talking about his involvement in the murder, corroboration missing in Fuson's trial. Hudson was sentenced to 62 years in prison.
Also absent from Fuson's trial was testimony about his alleged drug use and previous trouble with the law. In the Hudson trial, Epley allowed a hedonistic, drug-addicted lifestyle to be used to establish motive for robbery. That type of lifestyle was not an apparent motive in Fuson's case, the judge ruled, since he held a job, lived with his grandmother and there were no witnesses to establish a need for drug money. Holt argued "the entire case is wrapped up in a party lifestyle and trying to finance a lifestyle of illicit drug use."
"The record is strikingly bare of the defendant's lifestyle and activities other than being outside the location of the crime," Epley responded. "I can't get to where failing a drug test or using drugs shows motive." Fuson failed a drug test at some time following the crime.
The state rested at 10:30 a.m. Friday and the defense immediately made a motion to dismiss based on failure of evidence to corroborate accomplice testimony. For the next hour-and-a-half, the lawyers and judge debated the motion and reviewed case law.
Testimony by Hayes that Fuson and Weathereal were at her party and left together, and testimony by Renee Yarberry that the two showed up together late that night at her Green Forest home to ask for gas money was not enough, Epley ruled. "I'd hate to be found guilty for being seen with someone. I cannot in good conscience find that attending a party, being seen talking with someone or appearing later with another person asking for gas money suggests joint participation in a later robbery in another house culminating in murder."
Holt argued testimony putting Fuson in the area near the time of death was sufficient.
Rosensweig countered, "It boils down to the presence of the accused in the proximity, the opportunity to commit the crime and association with a person involved in the crime. Suggesting participation is getting down to guilt by association."
"That's the kind of question that gets answered by a jury," Holt argued. "A jury determines if guilt by association is adequate in a case."
"Guilt by association can never be adequate," Rosensweig responded.
"The court will have to determine if the evidence presents more than speculation," Epley said. After reviewing the Gibson v. State case, Epley stated "With great reluctance, the court finds insufficient evidence to convict. I find a directed verdict for the defendant."
Double jeopardy protections in the US and Arkansas Constitutions protect Fuson from being tried again for the murder.