Susan Lawson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

SUSAN LAWSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 05-974

April 5, 2006

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY

[NO. CR-04-54-5]

HONORABLE JOHN BERTRAN PLEGGE

JUDGE

AFFIRMED

Terry Crabtree, Judge

Appellant Susan Lawson was charged with second-degree murder in connection with the shooting death of Timothy Hilborn. Although she claimed self-defense, the jury found her guilty as charged, and she was sentenced to ten years in prison. As her only point of error, appellant contends that the trial court erred by refusing to allow evidence of the victim's prior misconduct. We find no reversible error and affirm.

Although the sufficiency of the evidence is not challenged on appeal, it is necessary to recount some portions of the testimony in order to place appellant's argument in context. Donna Hilborn, the victim's wife, testified that she had been married to Mr. Hilborn for four years. In the previous two years, Hilborn had been imprisoned for manufacturing methamphetamine. Donna said that appellant became her best friend when Hilborn was in prison and that they used crystal methamphetamine together. She testified that, when he was released from prison, Hilborn "went

straight," attended church, and helped her to stop using drugs. There was evidence introduced at trial that Hilborn had passed twelve drug tests since his release from prison.

Donna testified that on the day of the shooting, January 19, 2004, she had a "relapse" in that she went to appellant's home to use methamphetamine. While there, she received phone calls from her sister and daughter, and a short time later Hilborn and his son Tim came and took Donna's van. Donna asked appellant to drive her home, and when they pulled into the driveway Hilborn came outside and yelled for them to leave. Appellant rolled down her window, and Hilborn struck appellant with his hand and kicked the vehicle. Donna got out of the vehicle, but Hilborn pushed and shoved her back inside, telling her to leave. By this time, the children had come outside, and Donna yelled for her daughter Sarah to get the younger children and get in the vehicle. Sarah did get into the backseat. Donna said that she then noticed that appellant had a gun. Hilborn was standing by the door on the passenger side, and Donna told him to look at appellant. Hilborn began grabbing appellant's wrist and put the gun to his mouth saying, "Go ahead and shoot me if you've got the guts to." Hilborn let go of appellant's arm. Donna felt the gun against her stomach, and she said that Hilborn leaned over her to slap at appellant. Donna then heard the gun discharge.

Hilborn's son Tim testified that his father went to church after he got out of prison, that he worked his "butt off," and that "he lived his life like he should have." After the shooting he saw appellant standing over his father. He said that she tried to fire another shot at him but that the gun jammed.

Appellant testified that she carried a gun with her every day and that the weapon was between the seat and the console when she pulled into the driveway. She confirmed that Hilborn punched her when she rolled down the window, that he kicked her vehicle, and that he was pushing Donna back into the vehicle. She said that during the altercation Hilborn grabbed her hand that was holding the gun and put the gun to his face and said, "Shoot me, bitch. You're not going to shoot nobody." She said that he reached over and "popped" her and pulled her hair. She told him to stop, and he replied, "No, bitch you've made your choice now." Appellant testified that Hilborn pulled on the gun, "and whenever it did, it went off." On cross-examination, she said, "When he pulled my arm, I pulled back. My finger hit the trigger and the gun went off." She testified that she did not shoot Hilborn on purpose and that it was an accident.

Hilborn died from a single gun-shot wound to the chest. The State introduced evidence that the weapon, a .40 caliber Keltec pistol, had a trigger pull of ten pounds and that one of the rounds taken from the gun appeared to have been jammed as it was being loaded into the chamber. There was also testimony that the shot had been fired at Hilborn from a distance greater than two feet because there was no stippling or powder on Hilborn's clothing.

Appellant contends on appeal that the trial court erred by not allowing her to introduce evidence concerning Hilborn's conviction of cruelty to animals where he mutilated six rabbits that belonged to the children of a former girlfriend, and evidence concerning Hilborn's violent assault upon a police officer during an arrest. Appellant contends that both incidents were pertinent to her claim of self-defense, and that it was also admissible once the State introduced the testimony of Donna and Tim touting Hilborn's good character.

Under Ark. R. Evid. 404(a)(2), evidence of a pertinent trait of a victim's character is admissible. Evidence of a victim's violent character is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed she was in danger of suffering unlawful deadly physical force. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). Once the admissibility of character evidence is established under Rule 404, Rule 405 establishes the methods of proof which may be utilized. Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995). Rule 405(b) provides that in cases where character or a trait of character is an essential element of a charge, claim, or defense, proof may also be made of specific instances of conduct. Also, where character evidence of the victim is introduced, cross-examination is allowed into specific instances of conduct. Ark. R. Evid. 405(a). Such cross-examination tests the witness's knowledge of the accused's reputation and that, in turn, may go to the weight to be given his opinion. See Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994).

In this case, it was made known to the jury that Hilborn had fired several shots at police officers and threatened to kill them during an all-night standoff in 1998. Television footage of this event was also shown to the jury. The jury also heard testimony that Hilborn had a temper; that he was well-known to the sheriff's department because of disturbances involving him and Donna; that Donna had taken steps to get a protective order against him; that he was mean to Donna's children; that the children could not call 911 after the shooting because he had broken the phone; that law enforcement considered him as having a reputation for being violent, turbulent, and unpredictable; that he gave a former girlfriend a black eye and hit her with the butt of a rifle; that he shot up the White Hall Police Department in a drive-by shooting; that he claimed to be a hit man with two deaths to his credit; and that he kicked his daughter down the hallway and once threw a two-by-four at her, leaving a bruise. It is clear to us that the trial court allowed a considerable amount of testimony as to Mr. Hilborn's violent and aggressive nature. Thus we believe that the trial court committed no error by refusing the admission of evidence concerning the rabbit mutilation and an assault on a police officer, as it would have been cumulative to the above-mentioned testimony. See Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003); Thompson v. State, supra.

We also have some doubt whether the evidence was admissible for the purpose of supporting appellant's claim of self defense. In her testimony, appellant stated that the shooting occurred while she and Hilborn were tugging at the gun and that it was an accident. Where self defense is not established, Rules 404(a)(2) and 405(b) are not applicable, and evidence of specific instances of conduct is not permitted. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992); see also Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Moreover, where the accused contends that the death was the result of an accident, specific instances of conduct of the victim are not admissible into evidence. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996).

In sum, we find no abuse of discretion in the trial court's ruling. Therefore, we affirm.

Affirmed.

Gladwin and Vaught, JJ., agree.