Vincent James Hussey v. State of Arkansas

Vincent James HUSSEY v. STATE of Arkansas

Cr 97-450                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 16, 1998


1.   Evidence -- proof of guilt -- false and improbable statements
     admissible as. -- False and improbable statements explaining
     suspicious circumstances are admissible as proof of guilt. 

2.   Evidence -- testimony of one eyewitness sufficient to sustain
     conviction. -- One eyewitness's testimony is sufficient to
     sustain a conviction.

3.   Evidence -- guilty verdict supported by substantial evidence.
     -- Where appellant's own pretrial statements, and even his
     trial testimony, were at odds with his attempts to explain his
     participation, if any, in the shooting, and there was
     eyewitness testimony describing appellant and his accomplice
     and their actions, the supreme court, upon reviewing the
     evidence most favorable to the State, held that there was more
     than substantial evidence to support the jury verdict finding
     appellant guilty.

4.   Evidence -- confessions -- review for voluntariness. -- When
     reviewing the voluntariness of confessions, the supreme court
     makes an independent determination based on the totality of
     the circumstances and reverses the trial court only if its
     decision was clearly erroneous.
5.   Evidence -- voluntariness of confession -- trial court not
     clearly erroneous. -- Where the officers denied that the
     coercive actions alleged by appellant had taken place, and
     both officers testified that they did not see anything that
     would indicate appellant was being hurt, the supreme court was
     unable to say the trial court was clearly erroneous in finding
     appellant's statements were a product of his own free will.


     Appeal from Drew Circuit Court; Sam Pope, Judge; affirmed.
     William M. Howard, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.
and James Gowen, Law Student Admitted to Practice Pursuant to Rule
XV(E)(1)(b) of the Rules Governing Admission to the Bar of the
Arkansas Supreme Court, under the supervision of Kelly K. Hill,
Deputy Att'y Gen., for appellee.
 
     Tom Glaze, Justice.
     This appeal is a companion case to Harris v. State, 331 Ark.
353, ____ S.W.2d ____ (February 5, 1998), where we upheld the
capital-murder conviction of Derrick Harris for the shooting death
of Jimmy Gathings, a Monticello used-car dealer.  Harris's sole
point on appeal was that the State had presented testimony that was
so conflicting that it was insufficient to sustain a jury verdict
of guilty.  We disagreed, and held that the trial court had
correctly denied Harris's directed-verdict motion based on the
eyewitness testimony of Albert Lambert and Jerry Majors.  Both men
testified that they heard "pows" or "banging" sounds, observed
Harris and another man leaving Gathings's office, and subsequently
found Gathings had been shot.  In Harris, we upheld the jury
verdict of guilty and concluded that any inconsistencies in the
witnesses' testimony went to their credibility.  
     For his first point of error, appellant Vincent Hussey
challenges the trial court's denial of his motion for a directed
verdict.  Hussey contends the State failed to prove a robbery had
been committed or that he had committed a homicidal act, thus
failing to prove the charge of capital murder.  However, in
reviewing the record, it is clear there is sufficient evidence to
support Hussey's conviction for capital murder.   
     As in Harris, Lambert and Majors testified that they heard
what sounded like shots coming from Gathings's office and saw two
men running from the office with pistols in their hands.  Lambert
and another man got in a truck and followed the two men to a nearby
location where the men were picked up by others sitting in a red
car.  In Harris, Lambert identified Harris as the first man leaving
Gathings's office.  In the present case, Lambert identified Hussey
as the second man.  Myron Briggs testified that, on the day of
Gathings's murder, he dropped Harris and Hussey off at a pool hall
before the murder, and picked them up afterwards as they ran to
Briggs's car.  Briggs said he took them to where Hussey resided.  
     Majors testified the same as he had in Harris, plus he
described the second man out of Gathings's building as wearing a
brown or tan flannel shirt with a red shirt underneath and a blue
or black toboggan on his head -- the same clothing Hussey wore the
day of Gathings's murder.  Scott Sherrill, a serologist, testified
the red shirt Hussey wore on that day had blood stains matching
Gathings's blood type.   
     Hussey gave officers conflicting statements that implicated
him in Gathings's murder.  Hussey first asserted he was not
involved in the murder, but after signing a rights form, he
conceded he went to Gathings's office, but said "another guy pulled
the trigger."  In another statement, Hussey related that Harris and
a man named Stanford offered Hussey and two friends $500.00 to
serve as lookouts while Harris robbed Gathings's store.  At trial,
Hussey claimed he stood somewhere outside Gathings's building, but
in an earlier statement, he said that he was stationed inside,
where he saw Gathings reach for Harris's gun and Harris reacted by
shooting Gathings.
     In sum, Hussey's own pretrial statements, and even his trial
testimony, were at odds with his attempts to explain his
participation, if any, in the shooting death of Gathings.  This
court has often stated that false and improbable statements
explaining suspicious circumstances are admissible as proof of
guilt.  Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).  Our
court has further held that one eyewitness's testimony is
sufficient to sustain a conviction.  Harris, 331 Ark. 353, ____
S.W.2d ____.  In reviewing the foregoing evidence most favorable to
the State, we hold that there is more than substantial evidence to
support the jury verdict finding Hussey guilty.  See Id.
     Hussey's second and final point for reversal is that the trial
court erred in ruling he had voluntarily waived his rights and
confessed.  Again, Hussey's argument is without merit.  In support
of this point, Hussey claims that he was never given a chance to
read his statements, that he was beaten by an officer before giving
his statement, and that he was driven to a secluded area by an
officer and at gunpoint forced to sign one of his statements. 
Hussey also testified that he was wearing ankle shackles and
handcuffs when an officer beat and rammed Hussey's head into a
window. He claimed an administrator, Barbara Pirtle, and an inmate,
Scott Cruce, witnessed these events.  However, not only did the
officers deny such actions had taken place, but both Pirtle and
Cruce testified they did not see anything that would indicate
Hussey was being hurt.
     When reviewing the voluntariness of confessions, we make an
independent determination based on the totality of the
circumstances and reverse the trial court only if its decision was
clearly erroneous.  Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274
(1996).  Based upon the foregoing evidence, we are unable to say
the trial court was clearly erroneous in finding Hussey's
statements were a product of his own free will.
     In accordance with Ark. Sup. Ct. Rule 4-3(h), the record has
been reviewed for adverse rulings objected to by appellant but not
argued on appeal, and no such errors were found.  For the
aforementioned reasons, Hussey's judgment of conviction is
affirmed.