Theo Hoover v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

THEO HOOVER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-78

NOVEMBER 8, 2000

APPEAL FROM THE PIKE COUNTY CIRCUIT COURT,

NO. CR98-70,

HON. TED C. CAPEHEART, JUDGE

AFFIRMED

Appellant Theo Hoover was charged with first-degree murder after he shot and killed Stony Harris. A jury convicted him of second-degree murder, sentenced him to twenty years in the Arkansas Department of Correction, and imposed a fine of $5,000, plus court costs of $225. On appeal, he contends that this court should reverse his conviction and remand his case for a new trial because the trial court erred in refusing to give a proffered jury instruction, that it erred in not allowing him to call certain expert witnesses to testify to his mental defects, and that it erred by allowing into evidence what he characterizes as a gruesome photograph that was more prejudicial than probative in value.

Because Hoover is not contesting the sufficiency of the evidence that was used to convict him, only a brief recitation of the facts is necessary. At his trial, Patricia Crabtree testified that she is Hoover's girlfriend and was staying with him on the night of September

19, 1998. On the day of the shooting, she and Hoover had consumed at least eighteen beers and had a couple of mixed drinks. After Hoover took some of her pain medication and muscle relaxers for a sore back, they went to bed at about 7 p.m. She stated that they were awakened about 11:30 p.m. when Harris and Kenny White, who were friends of Hoover's, rode their four wheelers to Hoover's trailer and began banging on the door. She said that Margie Hoover, Hoover's mother, who lived next door, told the two to go away, but that Harris stated he was not leaving. Hoover then went to the door and invited Harris and White inside for a couple of drinks. They sat at the kitchen table and began drinking shots of whiskey. Crabtree testified that White left at approximately 1:30 a.m. At that point, Crabtree, who had also been at the table, left the room. She testified that Harris and Hoover were very intoxicated. Crabtree went to sleep in the back room but was awakened by a noise in the kitchen. She went into the kitchen and found Harris on top of Hoover banging Hoover's head on the floor. Harris was much larger than Hoover.

Crabtree stated that Hoover had asked Harris to leave and Harris had refused, so Crabtree asked Harris to leave. When Harris got to the front door, he stated that he was not going to leave, grabbed a shotgun that Hoover had beside the door, and Hoover and Harris began struggling with the gun. Shots were fired, two hitting and killing Harris. Crabtree stated that she had no idea who was pumping the shotgun when it discharged. But, she stated that the shotgun is hard for her to pump. After Harris was shot, Hoover yelled for Crabtree to get help and to call an ambulance and the police.

Kenny White testified that he and Harris went to visit Hoover the night of September19 and that they were all friends. He stated that he and Harris had been drinking before they arrived at Hoover's house. He also testified that it was common for Harris and Hoover to wrestle when they were drinking, but they did so as friends. He testified that he left before Harris.

Hoover testified that he had been drinking the day that Harris was shot. He said that he had gone to bed early that night, and that he was awakened when Harris and White knocked on the door. When he answered the door, Harris stated that he wanted to come in for some drinks, and that they began drinking shots of whiskey. Hoover said that Harris began to tease him about his ex-wife, but that Harris did so often and that it really did not bother him, but that since Harris was teasing him, he asked him to leave and stated that they should call it a night. He said that at that point, Harris took a big drink, knocked him out of his chair onto the floor, and began banging Hoover's head on the floor. He stated that it got out of hand and that he asked Harris to stop, but that Harris was biting him. Crabtree entered the room and asked Harris to leave. As Harris started for the door, he stated that Hoover could not make him leave, he grabbed Hoover's shotgun, and Hoover and Harris began struggling. He stated that the gun went off, striking Harris. He also testified that Harris was pumping the gun. He stated that after the gun has been fired, it is easier to slide and can easily be pulled down with a finger.

For Hoover's first point on appeal, he argues that the court erred in refusing to instruct the jury that a legal presumption exists, pursuant to Ark. Code Ann. § 5-2-620 (Repl. 1997), and that force used to defend oneself and the lives of persons or property in one's home isjustified unless overcome by clear and convincing evidence. Hoover concedes that the appellate courts have, after analyzing the language of the statute, affirmed the trial courts' refusal to give the requested instruction, and he urges this court to overrule those decisions, contending that the legislature's intent was abundantly clear that the presumption be given. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999).

Arkansas Code Annotated section 5-2-620 states:

(a) The right of an individual to defend himself and the lives of persons or property in his home against harm, injury, or loss by persons unlawfully entering or attempting to enter or intrude thereupon is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.

(b) There shall be a legal presumption that any force or means used to accomplish such purpose was exercised in a lawful and necessary manner, unless that presumption is overcome by clear and convincing evidence to the contrary.

(c) The above-stated public policy shall be strictly complied with by the courts, and appropriate instructions thereof shall be given to juries sitting in trial of criminal charges brought in connection therewith.

This court and the Arkansas Supreme Court have addressed Hoover's argument that the jury should have been instructed that a presumption exists that he may use force to defend himself in his home unless that presumption was overcome by clear and convincing evidence. The supreme court stated that the presumption in the statute has no real effect ina case such as Hoover's because the State must prove that he is guilty beyond a reasonable doubt and the clear-and-convincing-evidence standard for overcoming the presumption adds nothing to the State's burden. Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988). In Clark v. State, 15 Ark. App. 393, 396, 695 S.W.2d 396, 398 (1985), we held that:

We find the commentary following AMCI 4106 to be pertinent which provides as follows:

The Committee believes that the presumption set forth in Ark. Stat. Ann. 41-507.1 [now codified at Ark. Code Ann. § 5-2-620] in favor of a person defending himself in his home has no effect. If evidence is introduced to trigger the presumption, that same evidence supports the existence of the defense. Under Ark. Stat. Ann. 41-110(1)(a) and (3) [Ark. Code Ann. § 5-1-111] and 41-115(c) [Ark. Code Ann. § 5-1-102] the prosecution has the burden to prove as an element of its case the negation of any defense beyond a reasonable doubt. A presumption running in the defendant's favor which may be defeated by clear and convincing evidence by the state, but which also supports a defense which ultimately must be overcome by the state by evidence beyond a reasonable doubt, is of no effect.

Inasmuch as the jury was instructed pursuant to AMCI 4105 [now AMCI 705] which required the State to overcome appellant's reliance on self-defense of his person by a standard of beyond a reasonable doubt, we cannot say the trial court erred in refusing to instruct the jury upon Ark. Stat. Ann. 41-507.1.

See also Jewell v. State, 38 Ark. App. 254, 832 S.W.2d 856 (1992).

Hoover concedes that the jury was given AMCI 705, which instructed the jury that the State was required to overcome his reliance on the defense of self-defense. Based upon the commentary to the predecessor to AMCI 705 and existing case law, the court did not err in not giving his proffered jury instruction.

For his second point on appeal, Hoover contends that the court erred in refusing to allow expert testimony regarding his mental deficiencies, thereby violating his 6th Amendment, 14th Amendment, and statutory rights, specifically that the court erred in not allowing him to present evidence of his mental defect pursuant to Ark. Code Ann. § 5-2-303 (Repl. 1997), which provides "[e]vidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged."

He concedes that the experts proffered testimony about the effects of intoxication upon his mental defect. He also concedes that voluntary intoxication is not a defense to the formation of the specific intent to commit a crime. However, he asserts that the cases dealing with the defense of voluntary intoxication are not controlling because the holding of those cases does not take into consideration voluntary intoxication on a person who is suffering from a preexisting mental defect. In addition, during oral arguments, Hoover's counsel argued that the statute gives him a statutory right to introduce any evidence of a mental defect, whether or not the defect was affected by his voluntary intoxication. Counsel also conceded that he did not ask the trial court to allow only the evidence of his mental defect into evidence, striking any testimony concerning his voluntary intoxication on his mental deficiencies.

A trial court's ruling on the admissibility of evidence will not be reversed absent a showing that the court clearly abused its discretion. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997).

Hoover attempted to call two expert witnesses, Dr. Mary Whetherby and Marion Cheney. In her proffered testimony, Dr. Whetherby, a neuropsychologist, testified that Hoover did suffer from mental defects that are commensurate with borderline range of intellectual function. She further stated that his ability to reason was compromised by his intoxication. She stated, "At that level of alcohol intoxication it's extremely high that reasoning abilities are not a factor. Knowing that his reasoning abilities are impaired to that extent, in my opinion, there was no forethought in planning ... a murder."

Cheney, a psychologist, proffered testimony that Hoover suffers from a mental deficiency and that it affects his ability to reason and think and use judgment. Cheney also stated that the level of intoxication enhances that impairment and makes it more difficult to reason and form a purposeful mental state. Cheney's proffered testimony was as follows:

In my report I said that it's my opinion that Mr. Hoover was able to appreciate the criminality of his conduct after he became sober. ... It is my opinion that when he was intoxicated he did not have the culpable mental state at the time the crime occurred to be found guilty of this specific offense he's charge with.

In White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), the supreme court stated that at common law, evidence of voluntary intoxication, while no excuse for a crime, could be admitted into evidence to show the defendant was incapable of forming the specific intent necessary for the crime. However, in White v. State, the court overruled that common-law rule and stated that the Arkansas Legislature, in repealing Ark. Stat. Ann. 41-207(a), stated its intent to eliminate the defense of self-induced intoxication in criminal prosecutions. Following the Legislature's intent, the court in White v. State held that voluntary intoxicationis no longer a defense in criminal prosecutions.

From the proffered testimony of the two experts, it is apparent that Hoover not only sought to introduce evidence that he had mental defects, but also how his voluntary intoxication on the night of the shooting affected those mental deficiencies. Both of the experts stated in their proffered testimony that Hoover's intoxication was the driving force behind the offense. Because voluntary intoxication is not a defense to the formation of the specific intent required to execute the offense, the court did not err by refusing to allow the proffered testimony into evidence.

For Hoover's third point on appeal, he contends that the court erred in allowing the State to introduce into evidence a photograph that "served no valid purpose other than to inflame the passions of the jury." He argues that the photograph was so gruesome that, even though relevant, it should not have been introduced into evidence because its probative value is substantially outweighed by its unfair prejudice. He argues that the picture could shed light on how the victim was lying when the officers arrived and the extent of the head injury, but those issues were conclusively proven by the State through other exhibits and testimony.

The testimony concerning the photograph was from Jack Ursury of the Arkansas State Police, criminal investigation division. He stated:

I can identify No. 29 as a close-up of the body depicting the head and the brain matter and the large amount of blood that was poured out upon the floor from an extensive head wound. ... Back to Exhibit 29, which was introduced but not described, I can tell you that it depicts the body, a close-up of the body of Stony Harris as I observed it that night. He's lying partially face down on his stomach, his feet are extended, his arms in front of the body, excessive head wounds, blood and brain matter on the floor around his head.Also some of his brain matter is on the coffee table.

In Hill v. State, 325 Ark. 419, 427-28, 931 S.W.2d 64, 68-69 (1996), this court wrote:

We have repeatedly held that the balancing of probative value against prejudice is a matter left to the sound discretion of the trial court, and this decision will not be disturbed absent a showing of manifest abuse. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). The admission and relevancy of photographs is also a matter within the sound discretion of the trial court. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). An essential element of the charge against Hill was the degree of intent; whether he caused Moss's death "under circumstances manifesting extreme indifference to the value of human life." Ark. Code Ann. § 5-10-101(a)(1)(Repl. 1993). The nature and extent of a victim's wounds are relevant to a showing of intent, which may be inferred by the type of weapon used; the manner of use; and the nature, extent, and location of the wounds. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). The photographs admitted by the trial court showed where the victim's body was dumped and the nature, extent, and location of the trauma suffered by the victim. Accordingly, the trial court did not abuse its discretion in admitting the photographs.

We find that the trial court did not abuse its discretion by allowing into evidence the photograph. Although he was found guilty of second-degree murder, Hoover was charged with first-degree murder, so that the State sought to prove that Hoover caused the death of Harris with the purpose of doing so. See Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). Therefore, the photograph was relevant to show his intent to use the weapon, the manner in which the shotgun was used, and the nature, extent, and location of the injuries that led to Harris's death. In addition, the photograph showed the location of the body when the police arrived and the severe head trauma that Harris suffered.

Affirmed.

Robbins, C.J., and Neal, J., agree.