Hill v. State

Jessie Earl HILL v. STATE of Arkansas

CR 96-270                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered September 9, 1996


1.   Evidence -- evidence of other crimes charged -- when
     admissible. -- Generally, evidence of other crimes committed
     by the accused, but not charged and joined in the same
     information and not a part of the crime charged, is not
     admissible in evidence; however, evidence of other crimes is
     admissible in the State's case-in-chief when it is probative
     of the accused's participation in the crime charged; flight
     from the scene of a crime is relevant and admissible
     circumstantial evidence that may be considered in determining
     guilt.

2.   Evidence -- evidence of other crimes charged admissible --
     evidence relevant to proof of flight. -- Where the proof
     showed that appellant murdered the victim in Arkansas and was
     attempting to flee to Iowa, and that by the time he got to
     Missouri he was without a car or money, so he committed crimes
     to get a car and money so that he could continue his flight,
     the evidence of other crimes was relevant proof of flight.

3.   Evidence -- admissibility of evidence of flight -- evidence
     admissible even though not occurring immediately after the
     crime. -- Evidence as to the conduct of the accused during the
     period of his flight, including any criminal conduct
     constituting an inseparable part of the flight such as
     obtaining money or transportation, is generally held
     admissible; furthermore, evidence of flight after the
     commission of a crime is generally admissible even though it
     does not occur immediately after the crime. 

4.   Evidence -- admissibility of -- trial court has broad
     discretion. -- A trial court has considerable discretion to
     determine admissibility of evidence of other crimes and will
     not be reversed on appeal unless it has abused its discretion. 
     
5.   Appeal & error -- issue cannot be raised for first time on
     appeal. -- An issue cannot be raised for the first time on
     appeal. 

6.   Criminal law -- voluntariness of confession -- factors
     considered. -- In determining whether a confession was
     involuntarily given, an appellate court will make an
     independent determination of the evidence, based on the
     totality of the circumstances.


7.   Criminal law -- trial judge in best position to determine
     voluntariness of confession -- no error found. -- Where the
     detective unequivocally testified that appellant was given the
     Miranda warnings, waived his rights, and "had no hope of
     reward or fear of punishment,"  the trial judge was in the
     best position to determine the credibility of the witnesses at
     the Denno hearing, and his determination that appellant
     voluntarily confessed was not clearly erroneous.  
                                
8.   Motions -- motion for continuance -- factors considered. --
     The grant or denial of a motion for a continuance rests in the
     sound discretion of the trial court and will be reversed only
     on a showing of abuse of that discretion; motions for
     continuance are governed in part by Ark. R. Crim. P. 27.3,
     which requires a showing of good cause; in addition, the trial
     court should consider the diligence of the movant, the likely
     effect of the testimony sought, the probability of obtaining
     the witness in the event of a postponement, and the filing of
     an affidavit stating not only what facts the witness would
     prove but also that the movant believes them to be true.  

9.   Motions -- motions for continuance properly denied --
     appellant failed to act with diligence. -- Where appellant's
     first continuance motion, made three days before trial, asked
     for more time to interview three witnesses whose names had
     just been disclosed, the ruling did not constitute reversible
     error because none of the three witnesses testified; 
     appellant additionally contended that he needed more time to
     obtain blood tests, but at the hearing on the motion it was
     admitted that no arrangements for any type of blood test had
     been made; the trial court's denial of the motion because
     appellant had not acted with diligence nor had he made any
     showing that a blood test would enhance the defense was not an
     abuse of discretion.

10.  Jury -- court may order sequestered voir dire at its
     discretion -- no abuse of discretion found. -- If there is a
     potential for prejudice, the trial court is free to order
     sequestered voir dire, but that decision is a matter left to
     the trial court's sound discretion; appellant contended that
     he would have gotten more honest answers if the jurors had
     been sequestered, but made no proffer to substantiate the
     argument and offered no examples of jurors' responses during
     voir dire that appear to be less than honest; the trial court
     did not abuse its discretion in not ordering sequestered voir
     dire. 

11.  Evidence -- admission and relevancy of photographs -- when
     trial court will be reversed. -- 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; the admission
     and relevancy of photographs is also a matter within the sound
     discretion of the trial court.  

12.  Evidence -- appellant's intent an essential element to crime -
     - admission of photographs not an abuse of discretion. --
     Where an essential element of the charge against appellant was
     the degree of intent, whether he caused the victim's death
     "under circumstances manifesting extreme indifference to the
     value of human life" and 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, the trial court did not abuse its discretion in
     admitting the photographs; 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.


13.  Criminal law -- defendant may be charged and tried for
     different criminal offenses, even though one is a lesser-
     included offense of the other -- appellant was convicted of
     only one of the offenses -- double jeopardy inapplicable. --
     Appellant's contention that it was error for the trial court
     to refuse, before trial, to dismiss the charges of kidnapping
     and theft by receiving because a conviction for both would
     constitute double jeopardy was without merit; an accused may
     be charged and prosecuted for different criminal offenses,
     even though one offense is a lesser-included offense, or an
     underlying offense, of another offense; however, a defendant
     so charged cannot be convicted of both the greater and lesser
     offenses; here, the jury found appellant was guilty of both
     capital murder and kidnapping, but the trial court entered a
     judgment of conviction for capital murder only; therefore,
     there was no double jeopardy.
                                
14.  Jury -- refusal to give instruction on emotional disturbance -
     - no error found. -- Appellant offered no evidence of
     emotional disturbance; it was not error to refuse to charge a
     jury on manslaughter involving emotional disturbance when
     there was no evidence of such disturbance.


15.  Appeal & error -- appellant cannot change his argument on
     appeal -- argument not reached. -- Where, at trial, appellant
     moved for a directed verdict on the ground that kidnapping was
     not proven beyond a reasonable doubt, but he did not argue
     below, as he did on appeal, that the evidence was insufficient
     to corroborate the testimony of the accomplice, the argument
     was not reached; an appellant cannot change his argument on
     appeal.  


     Appeal from Grant Circuit Court; John W. Cole, Judge;
affirmed.
     Norman Mark Klappenbach, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Robert H. Dudley, Justice.
     Jessie Earl Hill was convicted of capital murder and sentenced
to life without parole.  There is no merit in any of his nine
arguments for reversal, which we discuss in four groupings.
     Hill, aged nineteen, was a suspect in a crime committed in
Camden and discussed leaving Arkansas with his friend, Demarcus
Tatum, aged eighteen.  On the afternoon of January 17, 1995, Hill
and Tatum went to Donny Ray Moss's house where they asked Donald
Thrower if they could borrow his 1990 Nissan Maxima automobile. 
Thrower refused to let them borrow his car, but agreed to let his
cousin, Arbrady Moss, drive them to the bus station in Camden. 
Hill, Tatum, and Moss got into the Nissan.  After going only a
short distance Hill told Moss he wanted the car.  Moss refused. 
Hill struck Moss in the head with a marble rolling pin.  Moss
pleaded with Hill to stop, but he continued. Moss fell into a
roadside ditch.  Hill and Tatum took the Nissan and left but, after
going only a short distance, decided to return and get Moss.  Moss
was still alive and begged for help.  Hill put Moss in the trunk of
the car.   
     Hill and Tatum got back inside the car.  By this time, they
had decided to go to a friend's house in Cedar Rapids, Iowa.  Tatum
drove until they reached Cohen Trail in Grant County, where they
stopped to dispose of Moss's body.  Tatum opened the trunk and
found Moss still alive.  Hill lifted Moss out of the trunk and beat
him with a juice bottle.  They left Moss on Cohen Trail and
continued their flight to Cedar Rapids.  
     The Nissan broke down near Adair, Oklahoma, and Hill and Tatum
had it towed to Osborn's Garage in Adair, where they sold it for
$150.00.  When questioned at the garage about blood that was in the
trunk, Tatum said it came from a deer.  Hill and Tatum used the
last of the proceeds from the sale of the car to buy bus tickets to
Kansas City.  Upon arriving in Kansas City, they had no money and
no transportation, so they decided to steal a car in order to
continue their journey to Cedar Rapids.  They saw a woman near her
car in a parking garage, grabbed her, stabbed her, and took her
purse and car keys.   When a security guard came on the scene, they
ran back to the bus station, where they were apprehended.
     Tatum, an accomplice, confessed to the above.  Donny Ray Moss
testified that he was present on January 17, when Hill and Tatum
attempted to borrow Donald Thrower's Nissan automobile, and that he
saw Hill and Tatum leave his house in Camden with Arbrady Moss, the
victim, driving the Nissan.  Bob Adams, the Sheriff of Grant
County, testified that Moss's corpse was found on Cohen Trail on
January 19, 1995, two days after Moss was last seen in Camden in
the Nissan.  Underneath the corpse were pieces of broken glass that
were identical to broken glass later found in the trunk of the
Nissan.  A fruit jar was found seven feet from Moss's corpse.  A
tooth was found in the trunk of the Nissan that matched the tooth
missing from Moss's jaw.  A rolling pin with hair and a dried
blood-like substance was found in the car trunk. A considerable
amount of dried blood was found in the trunk.  Dr. Charles Kokes,
a pathologist, observed fifteen individual lacerations to the
victim's head and gave his expert opinion that Moss died from
multiple blunt blows to the head.  He further testified that the
victim had been struck in the jaw area with a blow or blows that
had loosened his teeth.  In sum, the accomplice, Tatum, testified
that Hill committed capital murder, and his testimony was
corroborated.
                               I.
     By pretrial motion Hill asked the trial judge to exclude
evidence of an earlier murder in Camden with which he was charged
and to exclude all evidence of the offenses he committed in Kansas
City.  No evidence of the earlier murder in Camden was introduced,
and we need not further discuss that part of the motion.  In the
part of the motion material to this appeal, Hill moved to have
evidence of the offenses in Kansas City excluded because those
offenses occurred after the capital murder charged in this case;
they were not relevant to this case; and, even if relevant, the
probative value was substantially outweighed by the danger of
unfair prejudice.  See Ark. R. Evid. 401, 402 & 403.  The trial
judge refused to rule until the context of the evidence was shown
and commented: "Normally in the guilt phase, evidence of the crime
would not be admissible but in the sentencing phase the evidence
would be admissible."  In sum, the trial court validly found the
pretrial motion too broad and declined to rule before he knew the
full context of the evidence.  The result of the ruling was that
specific objections became necessary at trial.  Massengale v.
State, 319 Ark. 743, 894 S.W.2d 594 (1995).   
     During the guilt phase of the trial, accomplice Tatum
testified: "We started walking around [after getting off the bus in
Kansas City] looking for a car.  We were looking to steal a car. 
We did steal a car."  Hill objected on the ground that the evidence
was not relevant.  The trial court overruled the objection.  Later,
Tom Pruden, a detective with the Kansas City, Missouri, Police
Department testified that Hill confessed, in material part, as
follows: "Me and Mark [accomplice Tatum] needed to go to Iowa so we
decided we needed a car.  A girl came down this alley.  I grabbed
her.  She acted like she wanted to yell.  I told her to be quiet,
then stepped on the ice and fell to the ground.  I put my hand over
her mouth and grabbed her.  Mark got the purse and the security
guard came up.  I let her go and walked off.  I didn't see if Mark
had a knife.   I did not cut her.  I did not intend to hurt her." 
Before this evidence was admitted, Hill objected to the
introduction of the confession on the ground that the confession
was involuntary and that it was not relevant.  After a Denno
hearing, the trial court overruled the objection.  Still later, the
victim of the crimes in Kansas City took the stand to describe the
event, and Hill objected on the ground that her testimony was not
relevant and was prejudicial.  At trial Hill never asked the trial
court to weigh probative value versus prejudice, see Ark. R. Evid.
403; therefore, the trial court did not make such a ruling. 
Further, Hill did not ask to limit the evidence of the crimes in
Kansas City to the facts that would show only flight by the
accused.  On appeal, he assigns the rulings on relevancy and
voluntariness as error. 
     Hill argues that the crimes committed in Kansas City were not
relevant to the crimes charged in this case.  The general rule is
that evidence of other crimes committed by the accused, but not
charged and joined in the same information and not a part of the
crime charged, is not admissible in evidence. Haynes v. State, 309
Ark. 583, 832 S.W.2d 479 (1992).  However, there are limited
circumstances in which the State can offer evidence of other crimes
in its case-in-chief. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979).  Evidence of other crimes is admissible in the State's
case-in-chief when it is probative of the accused's participation
in the crime charged. Price v. State, 267 Ark. 1172, 599 S.W.2d 394
(Ark. App. 1980) (citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954)).  Flight from the scene of a crime is relevant and
admissible circumstantial evidence that may be considered in
determining guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876
(1984).  Here, the proof showed that Hill murdered the victim in
Arkansas and was attempting to flee to Iowa.  By the time he got to
Missouri he was without a car or money, so he committed crimes to
get a car and money so that he could continue his flight.  The
evidence of other crimes was relevant proof of flight. 
     Hill contends that the Missouri crimes have no independent
relevance because they were committed two days after the murder
charged in this case.  This argument was decided adversely to
Hill's position in Murphy v. State, 255 Ark. 90, 498 S.W.2d 884
(1973), when, in holding that evidence of flight may be admissible
even though it did not occur immediately after the crime charged,
we wrote:
     In connection therewith evidence as to the conduct of the
     accused during the period of his flight including any criminal
     conduct constituting an inseparable part of the flight such as
     obtaining money or transportation is generally held
     admissible. See State v. Ross, 92 Ohio App. 29, 108 N.E.2d 77
     (1952), and State v. Martin, 175 Kan. 373, 265 P.2d 297
     (1953).  Furthermore, evidence of flight after the commission
     of a crime is generally admissible even though it does not
     occur immediately after the crime. Commonwealth v. Liebowitz,
     143 P. Super. 75, 17 A.2d 719 (1941). 
Id. at 92-93, 498 S.W.2d  at 886 (emphasis supplied).
     Finally, a trial court has considerable discretion to
determine admissibility of evidence of other crimes, and will not
be reversed on appeal unless it has abused such discretion. 
Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), cert.
denied, 445 U.S. 905 (1990).
     Hill asks us to reverse the trial court on a Rule 403
weighing, but that issue was neither raised nor ruled upon at
trial.  An issue cannot be raised for the first time on appeal. 
Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
     Hill next contends that the trial court erred in allowing
evidence of the other crimes because his confession to the crimes
committed in Kansas City was involuntary.  In determining whether
a confession was involuntarily given, an appellate court will make
an independent determination of the evidence, based on the totality
of the circumstances. Free v. State, 293 Ark. 65, 732 S.W.2d 452
(1987). However, Detective Pruden unequivocally testified that Hill
was given the Miranda warnings, waived his rights, and "had no hope
of reward or fear of punishment."  Scherrer v. State, 294 Ark. 227,
234, 742 S.W.2d 877, 881 (1988).  The trial judge was in the best
position to determine the credibility of the witnesses at the Denno
hearing, and his determination that Hill voluntarily confessed was
not clearly erroneous.  See, e.g., Misskelley v. State, 323 Ark.
449, 468, 915 S.W.2d 702, 712 (1996).
                               II.
     Four points for reversal involve discretionary rulings by the
trial court. Two of these rulings involved motions for continuance.
The grant or denial of a motion for a continuance rests in the
sound discretion of the trial court and will be reversed only on a
showing of abuse of that discretion.  Hill v. State, 321 Ark. 354,
902 S.W.2d 229 (1995).  Motions for continuance are governed in
part by Ark. R. Crim. P. 27.3, which requires a showing of good
cause.  In addition, the trial court should consider the diligence
of the movant, the likely effect of the testimony sought, the
probability of obtaining the witness in the event of a
postponement, and the filing of an affidavit stating not only what
facts the witness would prove but also that the movant believes
them to be true.  Hill v. State, 321 Ark. at 356, 902 S.W.2d  at
230.  Hill's first continuance motion was made three days before
trial. In it, he asked for more time to interview three witnesses
whose names had just been disclosed.  The ruling did not constitute
reversible error because none of the three witnesses testified; 
consequently, Hill could not have suffered any prejudice as a
result of the ruling.  In this same motion Hill additionally
contended that he needed more time to obtain blood tests, but at
the hearing on the motion it was admitted that no arrangements for
any type of blood test had been made.  The trial court denied the
motion, finding that Hill had not acted with diligence and that he
had made no showing that a blood test would enhance the defense.
Hill has not shown these findings of fact to be in error.  Since he
did not act with diligence and made no showing that a test would
enhance the defense, we hold that the trial court did not abuse its
discretion in making the ruling.  See, e.g., Lukach v. State, 310
Ark. 38, 834 S.W.2d 642 (1992). 
     At the conclusion of the State's case Hill again sought a
continuance, this time to find a witness who would testify that
Tatum, the accomplice, had said that he "beat the system."  The
trial court denied the motion, finding that the jurors had already
been informed of Tatum's plea bargain and that the testimony would
add nothing to the defense.  There was no proffer to show that the
alleged statement meant anything other than Tatum had entered into
a plea bargain, received a sentence of twenty years, unlike Hill,
and had avoided the risks of a death sentence or life sentence
without parole.  
     Hill next argues that the trial court abused its discretion in
refusing to grant sequestered voir dire.  If there is a potential
for prejudice, the trial court is free to order sequestered voir
dire, but that decision is a matter left to the trial court's sound
discretion.  Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). 
Hill contends that he would have gotten more honest answers if the
jurors had been sequestered, but made no proffer to substantiate
the argument and offers no examples of jurors' responses during
voir dire that appear to be less than honest.  Accordingly, we
cannot say the trial court abused its discretion.  See Heffernan v.
State, 278 Ark. 325, 645 S.W.2d 666 (1983).
     Prior to trial Hill filed a motion to exclude from evidence
all photographs of the victim.   The trial court sustained the
objection to one of the photographs, but admitted the others.  On
appeal, Hill argues the trial court abused its discretion in
admitting photograph two, depicting the victim's body at a
roadside; photograph three, depicting a close-up of the victim's
wounds; and photograph four, depicting a close-up of the victim's
head wounds.  He contends the three photographs were more
prejudicial than probative under Ark. R. Evid. 403.
     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.
                              III.
     Hill was charged with capital murder, kidnapping, and felony
theft by receiving.  The theft-by-receiving charge was nolle
prossed.  The trial court instructed the jury on capital murder and
kidnapping.  The jury returned guilty verdicts on both charges, but
the trial court entered a judgment of conviction for capital murder
only.  In this point for reversal Hill contends it was error for
the trial court to refuse, before trial, to dismiss the charges of
kidnapping and theft by receiving because a conviction for both
would constitute double jeopardy.  The argument is without merit.
An accused may be charged and prosecuted for different criminal
offenses, even though one offense is a lesser-included offense, or
an underlying offense, of another offense.  Hill v. State, 314 Ark.
275, 281-82, 862 S.W.2d 836, 840 (1993).  However, a defendant so
charged cannot be convicted of both the greater and lesser
offenses.  Id.; Ark. Code Ann.  5-1-110(a) (Supp. 1995). Thus, a
defendant may be charged and tried for capital felony murder and
the underlying felony of kidnapping, but cannot be convicted of
both charges.  Martin v. State, 277 Ark. 175, 177, 639 S.W.2d 738,
739 (1982).  Here, the jury found Hill was guilty of both capital
murder and kidnapping, but the trial court entered a judgment of
conviction for capital murder only.  Therefore, there was no double
jeopardy.
                               IV.
     The remaining points for reversal are not of sufficient merit
to call for detailed discussion.  Hill assigns as error the trial
court's refusal to give an instruction on manslaughter involving
emotional disturbance.  However, he offered no evidence of such a
disturbance, and we have said that it is not error to refuse to
charge a jury on manslaughter involving emotional disturbance when
there is no evidence of such disturbance. Frazier v. State, 309
Ark. 228, 828 S.W.2d 838 (1992).  He argues that the trial court
erred in denying his motion for a directed verdict.  At trial, he
moved for a directed verdict on the ground that kidnapping was not
proven beyond a reasonable doubt.  He did not argue below, as he
does now on appeal, that the evidence was insufficient to
corroborate the testimony of the accomplice.  It is well settled
that an appellant cannot change his argument on appeal. Stewart v.
State, 320 Ark. 75, 894 S.W.2d 930 (1995); see also Walker v.
State, 318 Ark. 107, 883 S.W.2d 831 (1994) (argument not reached
when defendant argued at trial that there was insufficient evidence
for a verdict of either first-degree murder, second-degree murder,
or manslaughter but argued on appeal that he lacked the culpable
mental state).
     Finally, pursuant to Supreme Court Rule 4-3(h), all rulings on
objections, made by either party, which were adverse to Hill, have
been examined.  None of them constitutes reversible error.
     Affirmed.