Nelson v. State

Citation816 S.W.2d 159,306 Ark. 456
Decision Date23 September 1991
Docket NumberNo. CR91-70,CR91-70
PartiesHilliard L. NELSON, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Timothy Bunch, Monticello, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant, along with Charles Colbert and Ricky Dillard, was charged with the capital felony murder of Cheryl Franklin. Dillard agreed to be a state's witness, and appellant's case was severed from his co-defendants'. Appellant was convicted of the lesser included offense of first degree murder and sentenced to life imprisonment.

On appeal, appellant argues that the trial court should have found Dillard an accomplice as a matter of law and erroneously failed to instruct the jury accordingly under AMCI 402. He also argued that the trial court erred in denying his objections to certain statements made by the prosecutor during closing argument.

First, we agree with the trial court that Dillard was not an accomplice as a matter of law and that the court was correct in instructing the jury under AMCI 403 because Dillard's accomplice status was disputed. A brief reference to the pertinent facts is necessary. The state's proof showed that on the evening of January 20, 1990, the appellant, Colbert and Dillard were frequenting various drinking establishments. After a brief conversation in the parking lot of one of the clubs, Dillard gave Ms. Franklin some money in exchange for sex. Apparently, she wanted money so she could buy a "hit of crack." When the men left the establishment Franklin and another woman got in the car. They took the other woman home, and then picked up another individual named Rita Lane. Lane, however, was subsequently let out when appellant and Lane got into an argument. The men and Franklin then drove to a secluded area where they could smoke some crack.

Dillard testified that he departed the car and laid upon its front hood. He said that appellant got in the back seat and had oral sex with Franklin. Dillard stated that, during this period when appellant was in the car's back seat with Franklin, Dillard thought he heard appellant say that if Franklin would not have sex, they would leave her stranded. Dillard heard appellant and Franklin argue, and minutes later, Dillard heard three thumps on the back end of the car. Dillard looked through the back window of the car and saw Colbert with something in his hand making a wiping motion on the car's trunk. When Dillard walked to the rear of the car, he viewed appellant standing over Franklin with a piece of concrete in his hand, coming down towards her head. Appellant and Colbert drug Franklin's body into some bushes, and told Dillard if he said anything, the same thing would happen to him. Franklin's body was found the next day and all three men were arrested.

Under settled law, appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). An accomplice of another person in the commission of a crime is statutorily defined as a person, who with the purpose of promoting or facilitating the crime, solicits, advises, encourages, or coerces the other person to commit the crime or aids, agrees to aid, or attempts to aid the other person in planning or committing it. Ark.Code Ann. § 5-2-403 (1987). Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Scherrer, 294 Ark. 227, 742 S.W.2d 877.

Appellant argues a number of factors he believes show Dillard was an accomplice as a matter of law. For example, he asserts the state originally had filed the same murder charge against Dillard as it did against appellant and Colbert, Dillard was at least guilty of the crime of hindering apprehension and the prosecutor had granted Dillard "extreme leniency." Clearly, none of these facts in any way make Dillard an accomplice to Franklin's murder. And while appellant argues the state obtained from Dillard's wife a shirt, which may or may not have had blood on it, implicating Dillard in the crime, there was other testimony indicating the shirt was Colbert's. Such evidence surely does not conclusively establish Dillard as an accomplice to murder. See also Pilcher, 303 Ark. 335, 796 S.W.2d 845 (where this court concluded that the fact the witness helped load a victim's body into a truck did not establish the witness as an accomplice).

Finally, appellant argues that Colbert's confession, which apparently related Dillard's involvement in the crime, clearly revealed appellant as an accomplice. The short answer to this claim is that Colbert's confession was never introduced into evidence. Thus, the trial court or jury never had Colbert's confession before it when confronted with the accomplice issue.

In sum, contrary to appellant's argument, the evidence is disputed as to Dillard's accomplice status. Dillard's presence at the crime scene and...

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11 cases
  • Sheridan v. State
    • United States
    • Arkansas Supreme Court
    • May 3, 1993
    ...and the trial court did not abuse its discretion in overruling Sheridan's objection to the prosecutor's remarks. Nelson v. State, 306 Ark. 456, 460, 816 S.W.2d 159, 161 (1991); Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983); Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 We have said ma......
  • Nelson v. State
    • United States
    • Arkansas Supreme Court
    • April 5, 2001
    ...and sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed the trial court's decision in Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991). On January 22, 1993, appellant filed a pro se petition for postconviction relief. The trial court denied appellant's r......
  • Tate v. Pate
    • United States
    • Arkansas Supreme Court
    • November 2, 2006
    ...potential for prejudice based on the prosecutor's remarks. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). In Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991), the prosecutor remarked during closing arguments upon possibly incriminating matters that were left unsaid by a witness ......
  • Vickers v. State
    • United States
    • Arkansas Supreme Court
    • May 3, 1993
    ...law, appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). Under Ark.Code Ann. § 5-2-403 (1987), an accomplice is one who, with......
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