Dixon v. State

• Decision Date: 27 October 2011
• Docket Number: No. CR 10–1223.,CR 10–1223.
• Citation: 385 S.W.3d 164,2011 Ark. 450
• Parties: Kevin DIXON, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 450

385 S.W.3d 164

Kevin DIXON, Appellant

v.STATE of Arkansas, Appellee.

No. CR 10–1223.

Supreme Court of Arkansas.

Oct. 27, 2011.

Harrelson & Matteson, P.A., by: Jeff Harrelson, Texarkana, for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Justice.

Appellant Kevin Dixon was convicted by a Miller County jury of capital-felony murder, with aggravated robbery as the underlying felony, of Jose Vargas in Texarkana, Arkansas, and sentenced to life imprisonment without the possibility of parole. On appeal, he argues that the circuit court abused its discretion by (1) admitting evidence of his drug activity, (2) admitting hearsay, (3) admitting autopsy photographs, and (4) refusing to grant a mistrial. He also asserts that there was insufficient evidence to convict him of capital-felony murder.¹ Because this is a criminal appeal in which life imprisonment has been imposed, this court has jurisdiction pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2011). We affirm.

On June 15, 2009, at approximately 5:00 a.m., Roland Hayes was walking on Prince Street in Texarkana, Arkansas, and discovered a body, later identified as Jose Vargas, lying on the street. Although he did not touch the person, he observed that Vargas had a $20 bill clutched in one hand. Hayes contacted the police, and the Texarkana, Arkansas Police Department (“department”), including Officer Lloyd Douglas, Detective Bobby Jordan, Detective Les Moody, and Detective Paul Nall, responded to the scene. Unable to rouse Vargas, the officers contacted Lifenet who determined that Vargas was dead.

Douglas noticed that Vargas had scratches on his arms, legs, and head, and that he had a patch of hair missing. Douglas also observed that the pockets to Vargas's shorts were turned inside out, a condition commonly referred to as “rabbit ears” or “bunny ears,” that one of his shoes was in the middle of the street approximately two houses from the body, and that he had cash clutched in one hand. To exclude Hayes as a suspect, Douglas patted him for weapons and found none, nor did he find anything to suggest that Hayes had been involved in a struggle. He noticed that Hayes's wallet did not contain a large amount of cash.

Supervising Detective Bobby Jordan determined that the extent of Vargas's injuries to his head, chin, arm, and leg was inconsistent with the officers' initial theory that Vargas was run over by a vehicle. Jordan's belief was confirmed when he saw that Vargas's t-shirt was “wet and soaked” and that a .22 shell casing was found under his right arm when his body was rolled over. A cellular phone was recovered from Vargas's pocket, and a review of the call history reflected that four calls had been made to phone number 490–8035, including the last call made from the phone.

At the scene, Detective Moody dialed 490–8035 using Vargas's cellular phone but did not get an answer. Moody then dialed the previous number reflected in the call history and a woman, later identified as Rosalie Vargas, answered. During the conversation, she stated that her husband did not come home the night before. Detective Moody then went to the home of Rosalie Vargas and showed her the phone found on the body of the victim, and she identified it as belonging to her husband, Jose Vargas. She showed him Vargas's Texas driver's license, permitting the police to officially identify the body.

That same day, the police investigation revealed that the phone number 490–8035 was registered to Dixon, and Detectives Moody and Nall went to the home where Dixon was living, which was approximately nine blocks from where Vargas's body was found. Dixon and his girlfriend, Kizzie Cox, were there and the officers explained that they were investigating a death. Dixon agreed to go to the police department for questioning. He admitted that he had been involved in the selling of marijuana on June 14 and 15, 2009. Dixon said that he once had a cellular phone that had the number 490–8035; however, he said that it had been lost two months previously. Dixon stated that he had another cellular phone that had a different number. When questioned about an alibi for the evening of Vargas's murder, Dixon told the officers that he was at a friend's house until Cox picked him up, and they drove home after midnight on Sunday morning.

The police subpoenaed the records for phone number 490–8035. The records showed that the phone number for Dixon's new phone had been contacted from the phone number for the phone he claimed to have lost two months earlier. When Nall asked for an explanation, Dixon stated that whoever had his old phone had been harassing him by calling him at his new phone number, but he could not explain how that person would know his new phone number. Dixon denied knowing the victim and had no explanation why Vargas had called his old cellular number in the hours preceding his death. Another number reflected in the records belonged to Felicia Robertson,² who told police that Dixon was a friend and co-worker and that she had talked with him several times on June 14 and 15, 2009, and on all of those occasions, Dixon had been using the cellular phone that he claimed to have lost. When Nall confronted Dixon with this information, Dixon offered no explanation.

At trial, Robertson testified and verified what she had told the police during their investigation. She stated that Dixon called her on June 15 and admitted that he had lied to her previously when he stated that he had spent the prior night at his sister's house. She said that Dixon also admitted to her that he had lied to the police when he told them that he did not know Vargas.

Kizzie Cox testified and reiterated that she told the police that she talked on the phone to Dixon on June 14, and her cellular phone display reflected that the telephone number he was calling from was the phone he later claimed to have lost. Cox testified that she picked up Dixon on the night of June 14, and they went home around midnight and she played dominoes with her father for about twenty minutes. Afterward, she and Dixon talked and watched television for a while before she fell asleep, and she did not awaken until 7:00 a.m. the next morning. Cox also testified that Dixon drove her red Tahoe whenever he needed it.

Rosalie Vargas testified that she informed the detectives from the department that a few weeks before the shooting she saw someone in a red Suburban place something in their mailbox, but she did not see her husband retrieve it. She said that her husband admitted only a week before the shooting that he was buying marijuana; however, she was unaware that he was using cocaine. She testified that her husband kept a lot of money at their home because they were saving money to purchase a home. By her estimation, they had $15,000 the week before Vargas's death. Rosalie testified that after Vargas's death, she went to get money for the funeral and noticed that there was less money, although she could not state exactly how much was missing. Department Detective Angel Guzman testified that on June 16, Rosalie told him that Vargas's wallet was at their home and that approximately $3000 was missing.

William Newton was employed at Orr Auto Group, where Vargas worked. He testified that Vargas was paid approximately $2500 by his employer near the time of his death. Uriel Cortes testified that he also knew Vargas from work and was aware that he used drugs. Cortes stated that on June 14, he and Vargas were together with some other people at a house approximately two blocks from Vargas's home. They were drinking, and Cortes departed around 10:30 p.m. and never saw Vargas again.

Torin Smith was incarcerated with Dixon at the Miller County jail and shared the same pod. Smith testified that Dixon explained to Smith that he was jailed on a capital-murder charge but that he did not believe that he would be convicted because the police did not have any evidence. Smith stated that Dixon informed him that he sold drugs to Vargas. According to Smith, Dixon explained that normally he placed the drugs in Vargas's mailbox and picked up the money from the mailbox. Dixon told Smith that he had a friend who was selling drugs to a “Mexican guy” who had a lot of money. Dixon's friend did not want to rob Vargas, so he sought the assistance of Dixon. Smith testified that Dixon admitted that he picked up Vargas, and when he pulled out $2900, Dixon robbed him. Dixon stated that he pushed Vargas out on the side of the road, leaving him with “rabbit ears.” Dixon told Smith that he killed Vargas to prevent him from identifying Dixon.

Smith testified that Dixon also told him that he had talked to Vargas on his cellular phone, but stated that when the police asked him about that specific phone, he denied having it and gave them a different phone, which had another number. Dixon expressed disappointment that his girlfriend told the police that when she went to sleep on the night of the murder, Dixon was awake. Instead, Dixon said to Smith that he wished she had told the police that he went to sleep before she did. Dixon told Smith that he had thrown the gun used to kill Vargas into the lake at Spring Lake Park and that the police would never find it. Smith testified that he reported to officers at the department what Dixon had told him concerning the murder. Detective Moody testified that the information furnished by Smith regarding what Dixon had stated could only have been known by someone who was involved in the murder of Vargas.

Detectives Moody and Nall testified about events of the department's investigation into Vargas's death. Moody testified that the investigation revealed that Vargas spent most of the day before he was murdered buying beer and drugs. He stated that when Dixon was arrested and booked into jail on June 18, 2009, he had $2900 on his person. Nall also testified that on June 15, he observed a...