Broderick Collier v. State of Arkansas

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ar00-348

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

BRODERICK COLLIER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-348

February 28, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR97-3468

HON. MARION HUMPHREY,

CIRCUIT JUDGE

AFFIRMED

Appellant was convicted of first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. On appeal, appellant contends that the trial court committed reversible error when it denied his motion to suppress testimony concerning evidence recovered during an illegal search on the ground that it was not relevant to his guilt. We affirm.

Appellant was charged with first-degree murder in violation of Ark. Code Ann. § 5-10-102 (Repl. 1997). The State also alleged that appellant was an habitual offender with four or more felonies pursuant to Ark. Code Ann. § 5-4-501(b)(Repl. 1997). The State alleged that on July 25, 1996, appellant and at least one other person fired a gun at a vehicle driven by Adam Wilstead, causing Wilstead to be struck by the gunfire and to die at the scene. Prior to trial, appellant filed a motion to suppress Duke Hinerman's testimony concerning a shotgun that he took possession of at the scene. The shotgun itself was inadmissible because it was seized pursuant to an illegal search. At a hearing, the court denied appellant's motion, stating that because the State was proceeding circumstantially, the validity of Mr. Hinerman's testimony would be for the jury to determine. A jury found appellant guilty of first-degree murder, and he was sentenced to forty years in the Arkansas Department of Correction.

At trial, the evidence revealed that several people, including appellant, Dixie Hinerman Griffin, Lisa Pike Collier, Duke Hinerman, and Charles Bell, were living at 2205 Walker Street in July 1996. A couple of weeks before July 25, Ms. Collier had words with residents of a duplex on nearby Scotty Court because they cursed at Ms. Griffin's and Ms. Collier's children. On the evening of July 25, Ms. Collier was outside drinking beer when a car coming from Scotty Court passed the house several times. The occupants of the passing vehicle turned out their lights as they passed the home. Noticing the passing car, Ms. Griffin asked Ms. Collier to come inside the house because they lived in a gang neighborhood and she suspected drive-by shooting activity.

Ms. Collier eventually went inside the house and called appellant to come over. Appellant arrived at the house with a man named Keon. They were driving Ms. Collier's maroon Oldsmobile. Ms. Griffin testified that when they exited the car, appellant had a pistol and Keon had a sawed-off shotgun with tape on it. Ms. Griffin and Mr. Hinerman had both seen the shotgun before in appellant's possession. After Ms. Collier pointed out the suspicious car to appellant and Keon, it turned the corner and passed the house. Appellant and Keon began shooting at the car until it went into the ditch and wrecked. Appellant, Keon, and Ms. Collier went back into the house. After Ms. Griffin told them she was going to call the police, they took the guns and left the scene in the Oldsmobile. Appellant and Ms. Collier returned to the house without Keon after the police arrived.

Duke Hinerman testified he came home that evening to find police tape blocking off the street. He testified that when he reached the front porch, Mr. Bell, Ms. Collier, and appellant were all being escorted by police officers to the squad cars. As he passed Ms. Collier, she whispered to him to get the guns out of the floorboard of her car. Mr. Hinerman testified that when enough ofthe police left, he looked for the guns in the maroon Oldsmobile. He testified that he found the sawed-off shotgun in the back of the floorboard with a trash bag on top of it. Mr. Hinerman testified that the shotgun was a sawed-off, twelve-gauge, pump shotgun with tape all over the handle. He put the shotgun under the house. Mr. Hinerman testified that he had seen the shotgun in appellant's possession almost everyday. The next day appellant asked him where the shotgun was and thanked him for hiding the gun.

On appeal, appellant contends that Duke Hinerman's testimony should have been suppressed because it was not relevant to appellant's guilt, and that even if it was relevant, its probative value was outweighed by the danger of unfair prejudice.

Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it would be without the evidence. Ark. R. Evid. 401. However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. The trial court has wide discretion on rulings concerning the admissibility of evidence, and the appellate court will not reverse such a ruling absent an abuse of discretion. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

Appellant specifically argues that because the State did not prove that the shotgun was the murder weapon, its retrieval by Mr. Hinerman does not make the existence of any consequential fact more or less probable. Appellant cites various cases in support of his argument.

First, appellant cites Everett v. State, 231 Ark. 880, 333 S.W.2d 233 (1960). In Everett, the supreme court held that testimony about two knives and a fork was not relevant to any issue in the case because the State offered no proof that the items were used by either the appellant or the victim. In the present case there was proof that a shotgun was used in the shooting and that the victim died of a shotgun wound to the head and neck. In addition, both Mr. Hinerman and Ms. Griffin testifiedthat appellant regularly possessed a sawed-off shotgun with duct tape on the handle. Ms. Griffin saw Keon with that same shotgun just prior to the murder. The gun Mr. Hinerman retrieved at Ms. Collier's request was a sawed-off shotgun with duct tape on the handle. Mr. Hinerman testified that on the day after the murder appellant asked where he hid the gun and thanked him for doing so.

Second, appellant cites Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994). In Palmer, the appellant argued that the trial court erred in admitting the results of luminol testing without additional evidence that the test results were attributable to human blood related to the crime. The supreme court reversed and remanded, relying on a prior case where it said that luminol tests done without follow-up procedures are unreliable to prove the presence of human blood or that the substance causing the reaction was related to the alleged crime. Appellant's reliance on Palmer is misplaced because it did not involve a Rule 401 or 403 issue.

Finally, appellant relies on McCoy v. State, 270 Ark. 145, 603 S.W.2d 418 (1980), where the supreme court found that a police officer's testimony concerning appellant's possession of heroin at the time of his arrest and its suspected disappearance during booking procedures was prejudicial and of little probative value in determining appellant's guilt of possession of PCP and marijuana. In the present case, Mr. Hinerman's testimony is probative in determining appellant's guilt of murder.

Appellant's argument is unavailing. The medical examiner performed an autopsy on Adam Wilstead and found that the most significant evidence of injury was a shotgun wound with multiple-pellet injuries present in the back and left side of the head and neck; he concluded that Adam Wilstead died as a result of a gunshot wound to the head and neck. A firearm examiner testified that expended twelve-gauge shotgun shells were found in and around the crime scene. A neighbor who lived at 2301 Walker Street testified that he heard five repetitions of a shotgun and three or fourrepetitions of a handgun. Both Ms. Griffin and Mr. Hinerman testified that they saw appellant with the sawed-off shotgun on a daily basis. Ms. Griffin stated that she saw the same shotgun in Keon's hands minutes before the murder. Ms. Collier asked Mr. Hinerman shortly after the murder to retrieve the shotgun from the car. Mr. Hinerman retrieved the shotgun and hid it under the house. Mr. Hinerman testified that the shotgun was the twelve-gauge shotgun that he saw in appellant's possession daily. His testimony raises the inference that the murder weapon was the shotgun Ms. Collier asked him to retrieve. Mr. Hinerman testified that on the next day, appellant asked him where he hid the shotgun and thanked him for hiding the gun. This testimony links appellant to the crime and is certainly relevant and highly probative of his involvement in the murder. It is within the trial court's discretion to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, and its decision will be upheld absent manifest abuse of discretion. Gaines v. State, supra. We cannot say that the trial court abused its discretion in denying appellant's motion to suppress Mr. Hinerman's testimony.

Affirmed.

Stroud, C.J., and Bird, J., agree.

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