Joe Hall, Jr. v. State of Arkansas

cr01-917

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 21, 2002

JOE HALL, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-917

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 00-1433, HONORABLE MARION A. HUMPHREY, JUDGE

AFFIRMED

Appellant was convicted of first-degree murder and sentenced to life imprisonment. Appellant's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j)(1), seeking to withdraw as counsel on the basis that there is no merit to any arguments arising from the trial court's rulings that were adverse to his client. The State concurs that there is no merit to this appeal. Appellant has filed pro se points for reversal, pursuant to Ark. Sup. Ct. R. 4-3(j)(2).

The evidence presented by the State, which included appellant's confession to the police, established that appellant went to an apartment where the victim, Rodney Allen, and friends were playing cards. He and Allen had a history of personal conflicts. They exchanged words outside the apartment, and appellant left. Appellant then got a gun from his mother's house, returned to the apartment and shot Allen. The autopsy report revealed that Allen had five gunshot wounds. Noevidence was presented that Allen threatened appellant, and at the time he was killed, Allen was not armed.

Sufficiency of the Evidence

The first adverse ruling is the denial of appellant's motion for a directed verdict. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence, and we consider arguments on the sufficiency of the evidence prior to the review of any other claims of trial error. Dodson v. State, 341 Ark. 41, 46, 14 S.W.3d 489, 492 (2000). At the conclusion of the State's case, trial counsel moved for a directed verdict arguing that the State had failed to show that appellant, with the purpose of causing death, caused the death of the victim. The motion was denied then and at the close of all evidence.

"A person acts purposely with respect to his conduct or result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result." Ark. Code Ann. § 5-2-202(1) (Repl. 1997). We have held that a defendant's purposeful intent can be inferred from the manner of the victim's death and the location of the wounds. Harris v. State, 314 Ark. 379, 381, 862 S.W.2d 271, 272 (1993). At trial, undisputed evidence was presented that appellant argued with Allen, left the scene, retrieved a gun, returned to the scene, entered the apartment where Allen was playing cards with friends, and shot him. According to appellant, he shot him "so fast, I don't think he even knew what was going on his-self [sic]." The victim was shot in the heart, spine, and chest, and according to the medical examiner, any one of these wounds could have been fatal. Because there was substantial evidence presented at trial to support the verdict, we find no grounds for appeal on this issue. Motion to Suppress

The second adverse ruling is the denial of a motion to suppress appellant's statement to thepolice. Appellant's motion alleged that his statement was not voluntarily or knowingly given because he was intoxicated when he gave the statement. Appellant also asserted that the police promised him that if he told them what happened, they would rule the killing a "justifiable homicide." A hearing was conducted, and the trial court denied the motion.

Confessions made while a defendant is in custody are presumed to be involuntary, and the burden is on the State to prove that the confession was voluntary and that a waiver of rights was voluntarily and knowingly made. Diemer v. State, 340 Ark. 223, 227, 9 S.W.3d 490, 493 (2000). An appellate court makes an independent determination of the issue, based upon the totality of the circumstances. Steggall v. State, 340 Ark. 184, 195, 8 S.W.3d 538, 546 (2000). We will not reverse a decision to admit a confession, unless the ruling was clearly erroneous. Rucker v. State, 320 Ark. 643, 649, 899 S.W.2d 447, 449 (1995). The fact that a defendant may have been under the influence of alcohol or drugs at the time of his statement will not, of itself, invalidate the confession, but will only go to the weight accorded it. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988).

We stated in Kennedy v. State [255 Ark. 163, 499 S.W.2d 842 (1973)] that the test of voluntariness of one who claims intoxication at the time of waiving his rights and making a statement, is whether the individual was of sufficient mental capacity to know what he was saying--capable of realizing the meaning of his statement--and that he was not suffering from any hallucinations or delusions. We further noted in Kennedy that it was significant in making a finding of voluntariness that the appellant answered questions without indications of physical or mental disabilities, that the appellant remembered a number of other details about the interrogation ··²StarPage²····²StarPage²····²citeas((Cite as: 295 Ark. 276, *280, 748 S.W.2d 340, **342 )²····²citeas((Cite as: 295 Ark. 276, *280, 748 S.W.2d 340, **342 )²··even though she could not remember waiving her rights, and that ··²citeas((Cite as: 295 Ark. 276, *281, 748 S.W.2d 340, **342 )²····²citeas((Cite as: 295 Ark. 276, *281, 748 S.W.2d 340, **342 )²··a statement was given in a short period of time (four or five hours) after her rights had been read to her.

Id. at 280-81, 748 S.W.2d at 341-42. See also Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001).

In the present case, appellant asked his brother to take him to the police station when he discovered that he was wanted for questioning. Appellant testified that he was not drunk but was "good and high" after having consumed eight to twelve beers and smoked two "blunts" (marijuanacigars) before he was questioned by the police. According to appellant, he was not so high that he needed help and was capable of walking into the police station on his own. Appellant's brother testified that appellant did not have trouble walking, had not passed out, and was able to control himself. According to the officers who spoke with appellant, they did not detect the odor of alcohol or marijuana nor did appellant seem to be under the influence. Rather, they testified that appellant was coherent, his speech was not slurred, and he stated that he understood his rights and why he was being questioned. Appellant's statement was taken within one hour of being advised of his rights, and he responded to questions in detail. The officers deny making any promises or statements to appellant regarding "justifiable homicide" or how to avoid criminal charges.

We do not re-weigh issues of credibility but defer to the superior position of the trial court to make such determinations. Jones, supra at 688, 42 S.W.3d at 541. The issue of credibility of the witnesses was resolved against appellant. The State presented substantial evidence to establish that appellant understood his rights, voluntarily waived those rights, and gave a statement. We find no basis upon which to challenge the trial court's denial of appellant's motion to suppress.

Use of Appellant's Prior Battery Conviction

The trial court ruled that the State would be permitted, if appellant took the stand, to use a 1998 first-degree battery conviction to impeach his credibility. Appellant objected to the trial court's ruling, arguing that the similarity of the crimes would be more prejudicial than probative under Ark. R. Evid. 609. However, the trial court ruled that the evidence was relevant and refused to reconsider its ruling. Because appellant did not take the stand, this issue is waived for purposes of appeal.

Limitation on Cross-Examination of the Medical Examiner

Prior to the testimony of the medical examiner, the State told the trial court that the victimhad many tattoos, which were evident in the autopsy photographs. The State made a motion in limine to prohibit appellant from addressing this issue. According to the State, such examination would be irrelevant. The trial court ruled that if appellant intended to ask questions regarding the victim's tattoos, he would first have to establish their relevancy; otherwise, he would not be able to pursue the issue.

There was no error in the trial court's ruling that appellant must show the relevancy of the tattoos, as only relevant evidence is admissible at trial. See Ark. R. Evid. 402. Appellant was not prohibited from pursuing the issue, granted he made such a showing. However, appellant did not question the medical examiner regarding the tattoos and did not pursue the matter further. Therefore, this issue provides no basis for appeal.

Prosecutor's Closing Argument

During the guilt-innocence phase of the trial, the prosecutor stated in closing argument, "[Defense counsel] says the reason why it is murder in the second degree is because he was sorry. Ladies and gentlemen, I'm sure he's sorry for murder in the first degree. You know why? Because he can go to jail. Of course, he's sorry." In overruling trial counsel's objection, the court held that the prosecutor did not discuss sentencing ranges or mention anything other than the obvious, that appellant could go to jail.

The trial court has broad discretion in controlling closing arguments, and the appellate court will not reverse a trial court's decision absent manifest abuse of discretion. Johnson v. State, 333 Ark. 673, 682, 972 S.W.2d 935, 940 (1998). We find no such abuse. Moreover, appellant did not request an admonition to cure any possible prejudice caused by the remark. Therefore, there is no appealable issue.

Revealing the Nature of Appellant's Prior Battery Conviction

The trial court permitted the prosecutor to state that appellant had been convicted of battery in the first degree, which involved causing physical injury with a firearm. During the sentencing phase, the State offered evidence to prove its habitual offender allegation. The evidence established that appellant had been convicted of theft by receiving in 1984, theft of property in 1986, and battery in the first degree in 1988. Appellant did not challenge the prior convictions but did "object to getting into explaining to the jury what the facts are about." The prosecutor argued that she was permitted to explain the nature of the charge but would not delve into the facts of the battery case. Appellant did not object to the trial court's ruling nor did he argue that his prior conviction did not involve a firearm.

Under the Habitual Offender Act, the sentencing provisions specifically permit the jury to be "advised as to the nature of the previous convictions and the date and place thereof." Ark. Code Ann. § 5-4-502(3) (Rep. 1997). Use of a firearm was the "nature" of the crime; accordingly, this ruling provides no issue for appeal.

Denial of Pre-Trial Bond

Appellant requested a bond reduction and after a hearing was held, the request was denied by the trial court. Appellant was credited with the 328 days he spent in jail awaiting trial. While adverse to appellant, the trial court's decision to deny bond cannot serve as grounds to reverse a valid conviction. See Orsini v. State, 281 Ark. 348, 359, 665 S.W.2d 245, 252 (1984). Therefore, this ruling provides no issue for appeal.

Appellant's Taped Statement

In its supplemental abstract, the State noted an additional adverse ruling. During the direct examination of Detective Charles Weaver of the Little Rock Police Department, Homicide Division, the State attempted to play appellant's taped statement for the jury. Trial counsel continued hisobjection to the statement, and the objection was overruled. Transcripts of the tape were given to the jury and the tape was played. As previously stated, the State presented substantial evidence to establish that appellant understood his rights, voluntarily waived those rights, and gave the statement. Therefore, we find no basis upon which to challenge the trial court's ruling.

Points for Reversal

Appellant raises three issues as points for reversal, but none are preserved for appellate review. First, appellant asserts that the trial judge should have recused himself due to bias toward the victim. However, the record makes no mention of a motion to recuse. Second, appellant asserts that a certain juror should have been stricken, but again, the record does not reveal that a motion to strike was made. We decline to address issues raised for the first time on appeal. Windsor v. State, 338 Ark. 649, 655, 1 S.W.3d 20, 24 (1999). Finally, appellant raises a number of allegations of ineffective assistance of counsel. However, in order to raise a claim of ineffective assistance on direct appeal, appellant must first have presented the claim to the trial court either during the trial or in a motion for a new trial. See Chavis v. State, 328 Ark. 251, 253, 942 S.W.2d 853, 853-54 (1997). Appellant has failed to do either. Accordingly, we conclude that the appeal is without merit. Counsel's motion to withdraw is granted, and the judgment is affirmed.

Affirmed.