Hogue v. State

Greg HOGUE v. STATE of Arkansas

CR 95-985                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1996


1.   Criminal law -- accomplice testimony -- independent,
     corroborative evidence required. -- Where accomplice testimony
     is involved, Arkansas law requires that there be independent,
     corroborative evidence which tends to connect the defendant
     with the commission of the offense.   

2.   Criminal law -- defendant must either have the trial court
     declare a person an accomplice as a matter of law or submit
     the issue to the jury -- defendant need not do both to
     preserve the issue of an erroneous denial of a directed
     verdict motion. -- A defendant must either have the trial
     court declare a person an accomplice as a matter of law or
     submit the issue to the jury for determination, but the
     defendant need not do both in order to preserve the issue of
     an erroneous denial of a directed verdict motion.

3.   Criminal law -- trial court made a finding that person was an
     accomplice -- appellant preserved the issue of whether the
     trial court erred in declining to direct a verdict on
     insufficient corroborative evidence. -- Where there were 
     findings by the trial court that the witness was an accomplice
     and that there was sufficient corroborative evidence, and the
     trial court denied the motion for directed verdict, the issue
     of whether the trial court properly denied the motion did not
     depend on whether a subsequent instruction was requested
     involving the same legal point; appellant preserved the issue
     of whether the trial court erred in declining to direct a
     verdict on insufficient corroborative evidence.

4.   Evidence -- corroborative evidence must be sufficient standing
     alone to establish the commission of the offense and to
     connect the defendant with it -- circumstantial evidence
     qualifies as corroborating evidence. -- The corroboration must
     be sufficient standing alone to establish the commission of
     the offense and to connect the defendant with it; the
     corroborative evidence must be substantial evidence which is
     stronger evidence than that which merely raises a suspicion of
     guilt; circumstantial evidence qualifies as corroborating
     evidence but it, too, must be substantial, but corroboration
     need not be so substantial in and of itself to sustain a
     conviction.  

5.   Evidence -- sufficient evidence to connect appellant to the
     crime -- evidence connecting appellant to the crime was
     substantial. -- Where there was evidence which placed
     appellant in a white Oldsmobile with a red ski mask on Asher
     Avenue about the time the murder occurred, evidence that the
     occupants of the car were armed, evidence that the plan was to
     commit a robbery and that appellant participated in
     formulating that plan, a man was seen at the crime scene
     wearing a red ski mask and returning to a white car that
     looked like an Oldsmobile after a gunshot was heard, a red ski
     mask was recovered by police officers at a home where
     appellant had been, and appellant tried to escape when police
     officers announced their presence at his door, the evidence
     connecting appellant to the murder was substantial.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     William R. Simpson, Jr., Public Defender, by:  Latrece Gray,
Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Robert L. Brown, Justice.Associate Justice Robert L. Brown
February 19, 1996  *ADVREP9*






GREG HOGUE,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 95-985




APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CR 94-904 C,
HON. CHRIS PIAZZA, JUDGE,




AFFIRMED.





     Appellant Greg Hogue appeals his capital murder conviction on
grounds that the evidence was insufficient to support the judgment. 
We disagree and affirm the judgment.
     On February 22, 1994, Jess Brown was working at Rocky's One
Stop, a convenience store located at the corner of John Barrow Road
and Asher Avenue in Little Rock, which he owned.  Sometime after
10:00 p.m., another employee, Marcus Hall, returned to the
convenience store to buy batteries for a remote control device.  He
warned Jess Brown that he had seen two men standing by the
laundromat near the store and that one of them was wearing a white
scarf over his face.  He said they ran off after seeing him.
     Shortly after that, two men entered the store.  One of them
fired a shot which hit Jess Brown in the mid-chest region.  The men
fled the store after the shot was fired and were seen leaving the
area in a white car with a dark roof.  Jess Brown lived long enough
to call 911 but later died from the gunshot wound.
     Greg Hogue was ultimately charged with capital felony murder
in the shooting death of Jess Brown with aggravated robbery as the
underlying felony.  A jury trial was held at which Mark Poindexter
was the principal State witness.  He testified that he hosted a
party on February 22, 1994, and that Greg Hogue, Damion Brown,
Harold Olive, and Anthony White were there, among others.  He
testified that Anthony White suggested they commit a robbery. 
Shortly after that, Poindexter left with Hogue, Damion Brown,
White, and Olive to commit the robbery.  They used his car -- a
white Delta 88 Oldsmobile -- for transportation.  Before they
reached the site for the robbery, White "chickened out," according
to Poindexter, and jumped out of the car.  When they reached their
destination, they got out of the car and took the guns, a .38
revolver and a .380 semiautomatic pistol, out of the trunk. 
Poindexter testified that Hogue put on a red ski mask, and Damion
Brown put a white rag over his face.  Hogue and Damion Brown left
and walked to the store.  Approximately five to ten minutes later,
Poindexter heard a gunshot.  Hogue and Damion Brown returned to the
car, and the group left.  Damion Brown told Poindexter that he had
dropped the gun.  Poindexter testified that Hogue got out of the
car somewhere on Barrow Road and that he, along with Damion Brown
and Olive, returned to the party.
     At the close of the State's case-in-chief, Hogue's counsel
moved for a directed verdict specifically on grounds that the only
connection between Hogue and the events of February 22, 1994, was
through the testimony of accomplices and that there was not
sufficient independent evidence to connect him to the crime.  The
trial court stated that Mark Poindexter was obviously an accomplice
but found that other evidence presented tended to connect Hogue to
the murder.  Hogue's counsel then argued that it was Hogue's
position that two corroborating witnesses were also accomplices
and, thus, their testimony could not connect Hogue to the crime. 
The court ruled otherwise and denied Hogue's motion for a directed
verdict.  The defense rested without calling any witnesses.  The
jury returned a verdict of guilty on the charge of capital felony
murder.  Following the penalty phase of the trial, Hogue was
sentenced to life in prison without parole.
     Hogue raises only one issue on appeal.  He claims that there
was insufficient evidence to support his conviction for capital
felony murder and further maintains that adequate evidence
corroborating the testimony of Mark Poindexter, the accomplice, was
lacking.  Because the sole ground given for his directed verdict
motion was the absence of sufficient corroborative proof, that is
the only ground preserved for our review.  Walker v. State, 318
Ark. 107, 883 S.W.2d 831 (1994).  Contrary to what he contended
before the trial court, Hogue does not argue on appeal that state
witnesses, other than Poindexter, occupied the status of an
accomplice.
     Hogue is correct that when accomplice testimony is involved,
our law requires that there be independent, corroborative evidence
"tending to connect the defendant with the commission of the
offense."  Ark. Code Ann.  16-89-111(e)(1) (1987).  The State's
retort to this is that Hogue failed to request an instruction
informing the jury (1) Mark Poindexter was an accomplice as a
matter of law, and (2) it was necessary for the State to produce
evidence connecting Hogue to the crime, independent of Poindexter's
testimony.  By failing to ask for the instruction, according to the
State's theory, Hogue waived this argument.  The State cites
several cases in support of its argument.  See Rockett v. State,
319 Ark. 335, 891 S.W.2d 366 (1995); Pilcher v. State, 303 Ark.
335, 796 S.W.2d 845 (1990); Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979); Odom v. State, 259 Ark. 429, 533 S.W.2d 514
(1976); see also, McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992).
     We do not agree with the State's analysis of our cases.  We
have stated that a defendant must either have the trial court
declare a person an accomplice as a matter of law or submit the
issue to the jury for determination.  See, e.g., Rockett v. State,
supra; Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990).  But
we have not required the defendant to do both in order to preserve
the issue of an erroneous denial of a directed verdict motion.  In
the case at bar, there was a finding by the trial court that
Poindexter was an accomplice.  The court also found that there was
sufficient corroborative evidence, and it denied the motion for
directed verdict.  As a result, the issue of whether the trial
court properly denied the motion did not depend on whether a
subsequent instruction was requested involving the same legal
point.  We conclude that Hogue preserved the issue of whether the
trial court erred in declining to direct a verdict on insufficient
corroborative evidence. 
     We must then decide whether sufficient evidence tending to
connect Hogue to the crime, apart from Mark Poindexter's testimony,
was presented, as required under  16-89-111(e)(1).  We have held
that the corroboration must be sufficient standing alone to
establish the commission of the offense and to connect the
defendant with it.  Daniels v. State, 308 Ark. 53, 821 S.W.2d 778
(1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991);
Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990);
David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988).  The
corroborative evidence must be substantial evidence which is
stronger evidence than that which merely raises a suspicion of
guilt.  Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). 
Circumstantial evidence qualifies as corroborating evidence but it,
too, must be substantial.  See David v. State, supra.  But
corroboration need not be so substantial in and of itself to
sustain a conviction.  See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742
(1982).
     Here, there is enough evidence to connect Hogue to the crime. 
First, there is the testimony of Marcus Hall, the employee of
Rocky's One Stop, who testified that he saw two men over by the
laundromat next to Rocky's One Stop.  One of them had a white scarf
that covered his mouth and nose.  They ran when they saw him, and
he told Jess Brown about them.  Jess Brown and Hall then walked
behind the counter to find the batteries to fit Hall's remote
control device.  While Hall was bent down behind the counter, Jess
Brown was shot.  The events in the store were confirmed by the
surveillance video which was introduced into evidence, although an
identification of the men could not be made.
     Dr. Peretti, a State medical examiner, confirmed that Jess
Brown had been shot in the chest and testified that he died as a
result of that wound.
     Daniel Reed, a neighbor in the area, testified that as he was
taking out his garbage on the night of the murder, he heard a
gunshot.  When he looked up, he saw two men running across the
laundromat parking lot, which is next to Rocky's One Stop.  They
got into a white car with a dark roof, possibly an Oldsmobile,
which was parked in the parking lot of the Optimist Club and drove
away going east on Asher Avenue.  The car did not have any license
plates.  He testified that one of the men was wearing a red ski
mask and the other was wearing a white one.  He testified that the
man wearing the red ski mask was a few inches taller than the
other.
     Detective Mike Durham of the Little Rock Police Department
testified that Greg Hogue's height was approximately 6' to 6'1,
while Damion Brown was 5'9".
     Alfreda Jackson testified that she went to a party at Mark
Poindexter's house on the night of the murder.  She said that Mark
Poindexter, Damion Brown, Harold Olive, and a person named "Greg"
left the party at the same time she did.  They followed her car
until they reached Asher Avenue.  She lost sight of them after
that.  She later returned to the party, and Poindexter, Damion
Brown, and Olive were there, but "Greg" was not.
     Dadtrick Arnold testified that he was at the party on the
night of the murder.  He stated that he overheard a conversation
among Greg Hogue, Damion Brown, and Harold Olive in which they
discussed "making a lick," which meant a robbery.  He testified
that Hogue, Damion Brown, Olive, and Poindexter left approximately
an hour later in Poindexter's white car.  He testified that there
were guns at the party, a .380 semiautomatic pistol and .38
revolver, and that Anthony White had one and that either Damion
Brown or Olive had the other.  Olive had a pair of brown gloves. 
Arnold also testified that he told Little Rock police officers that
Hogue had a red ski mask with him that night.
     Myron McClendon testified that he, too, was at the party the
night of the murder.  While there, he saw a .38 revolver and a
black .380 semiautomatic pistol.  Anthony White and Harold Olive
had those guns.  He also saw Greg Hogue with a red ski mask that
night.  He stated that he heard Damion Brown tell Freda Jackson and
Lila Harnett that they were going to "hit a lick," which meant
commit a robbery.  After hearing that, Poindexter, White, Hogue,
Damion Brown, and Olive left in Poindexter's white Oldsmobile.
     Officer Ronnie Smith of the Little Rock Police Department
testified that he recovered a red ski mask, some brown gloves, and
a .380 semiautomatic pistol from Anthony White's house.  Anthony
White's mother, Joyce White, testified that Hogue came to her house
the night of the murder and that he also returned the next morning.
     Detective Don Bakelekos of the Little Rock Police Department
testified that he executed the arrest warrants for Greg Hogue and
Damion Brown.  When the police knocked on the door and announced
their presence, Hogue and Damion Brown tried to leave out the back
door.
     In sum, we have evidence placing Hogue in a white Oldsmobile
with a red ski mask on Asher Avenue about the time the murder
occurred.  We have evidence that the occupants of the car were
armed.  We have evidence that the plan was to commit a robbery and
that Hogue participated in formulating that plan.  A man was seen
at the crime scene wearing a red ski mask and returning to a white
car that looked like an Oldsmobile after a gunshot was heard.  A
red ski mask was recovered by police officers at a home where Hogue
had been.  Hogue tried to escape when police officers announced
their presence at his door.  We conclude that the evidence
connecting Hogue to the murder is substantial.
     The record has been examined pursuant to Supreme Court Rule 4-
3(h) for other reversible error, and none has been found.
     Affirmed.