Green v. State
| Decision Date | 09 March 2006 |
| Docket Number | No. CR 04-1379.,CR 04-1379. |
| Citation | 231 S.W.3d 638 |
| Parties | Billy Dale GREEN, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Arkansas Public Defender Commission, by: Janice Vaughn, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., Little Rock, for appellee.
Appellant Billy Dale Green appeals the judgment and order of the Randolph County Circuit Court convicting him of four counts of capital murder and one count of kidnapping. Appellant was sentenced to death on each count of capital murder and to life imprisonment on the count of kidnapping. On appeal, Appellant raises seven arguments for reversal: (1) the trial court erred in denying Appellant's motion for a directed verdict; (2) the State violated Appellant's constitutional right to due process by failing to disclose impeachment evidence; (3) the trial court erred by allowing Mary Green to testify against Appellant over his assertion of the marital privilege; (4) the trial court erred by allowing the State to present reputation and other bad acts evidence; (5) the trial court erred in allowing the hearsay testimony of the victims, and in so doing, violated Appellant's right to confrontation; (6) the trial court abused its discretion in allowing Kermit Channel's testimony; (7) the trial court erred by failing to grant a mistrial, based upon the State's improper remarks during closing argument. As this case involves a sentence of death, our jurisdiction is proper pursuant to Ark. Sup.Ct. R. 1-2(a)(2). We find that the trial court committed reversible error in allowing the State to present reputation and other bad acts evidence, and remand the case for a new trial.
On July 30, 1998, Lisa Elliott and her six-year-old son, Gregory, were found dead at their home in Dalton, Arkansas. Both had been killed by multiple sharp-force and blunt-force injuries. At that time, Lisa's husband, Carl Elliott, and their eight-year-old daughter, Felicia, were missing. On August 1, 1998, Carl's body was found floating in the Eleven Point River. An autopsy ruled his death a homicide, as a result of two .22 caliber gunshot wounds to the head, with cutting wounds to his neck. Shortly after Carl's body was found, Chad and Jason Green, Appellant's sons, became suspects in the murders. Felicia's remains were found two years later, on September 7, 2000, on Mud Creek in the Warm Springs area about a half a mile from Appellant's home at the time. After Felicia's remains were found, Appellant also became a suspect because of the close proximity of the remains to his home.
In July 2003, Appellant and Chad were arrested on an unrelated matter. On July 29, 2003, a confidential informant, later identified as Mary Green, went to the police and gave a statement. She reported that on the evening of July 29, 1998, Appellant received a call from Chad, left the house, and was gone for several hours before returning. She also told police that about two years after the murders, Appellant told her that he had met Chad to help him clean up the murders. She also stated that on more than one occasion Appellant told her that Chad had committed the murders, but that Chad had told her on more than one occasion that Appellant committed the murders.
On August 3, 2003, Appellant was charged with four counts of capital murder for the Elliott murders and one count of kidnapping.1 On August 9, 2003, Chad gave a statement to the police implicating his father in the murders. For testifying at Appellant's trial, Chad received a deal, where he would be sentenced to twenty years for the murders, to run consecutively with twenty years for the kidnapping of Felicia.
At trial, Chad testified that, on the evening of July 29, 1998, Carl Elliott came to his house. Chad then called Appellant, as Appellant had instructed him to if Carl ever came by. Appellant went to Chad's house, but Carl had left by the time he arrived. Appellant and Chad smoked methamphetamine, and Appellant drank the remainder after he had dumped it into some coffee. As they were leaving Chad's house, Appellant told Chad to grab his .22 rifle and they went for a ride to Dalton. Pursuant to Appellant's instructions, Chad went to the Elliott home, told Carl he was having car trouble, and had Carl drive him down to the river. Chad testified that when they got to where Appellant was waiting, Appellant started beating Carl and asking "where's my stuff?" Carl told Appellant that only his daughter knew where it was, to which Appellant replied, "I told you I'd kill you." Appellant then shot Carl, and as Chad was turning away he heard another shot. Next, Chad heard Appellant say that he never had a knife when he needed one. He then told Chad to "[t]ake the car and go back up to the house."
When they got up to the Elliott house, Appellant went in. Chad heard yelling, got out of the car, and saw Appellant hitting Lisa with a bar or something. Chad testified that Appellant told him to get back in the car, and when he turned around he saw blood and noticed a little boy's body lying on the floor. Then, Appellant came out of the house with Felicia wrapped in a blanket and put her in the trunk of the Elliott's car. Chad testified that he could see "just legs and she was moving around." Appellant told Chad to drive back to the river, where Appellant taped Felicia's legs, mouth, and hands before putting her in the bed of his truck. They drove to Chad's house where Appellant put Felicia in the shed, in a trash can, with the gun and his coat. The next day, Appellant bought diesel fuel which he and Chad used to burn the gun and clothes. Appellant then removed Felicia from the shed and drove with Chad towards the Green family home. Appellant took Felicia into a wooded area, and returned to the truck without her. Appellant told Chad to burn the blanket and the tape.
In addition to Chad's testimony, other members of the Green family testified that Appellant and Chad were not home on the night of the Elliott murders, but that Appellant had told them, if they were ever asked, to say that everyone was home. Willie Scott Moffitt also testified that, while he was in the Craighead County Jail with Appellant, Appellant made several remarks regarding the murders and that "[w]e just shouldn't have done it."
The jury convicted Appellant as set forth above, and this appeal followed.
First, Appellant argues that the trial court erred in denying his motion for a directed verdict. Specifically, Appellant claims that a close reading of the testimony presented by the State reveals that the only direct evidence linking Appellant to the Elliott murders came from Chad Green, an accomplice. Appellant points out that Chad's testimony must be corroborated by other evidence sufficient enough to connect Appellant to the crimes; however, Appellant maintains that the only other possible corroborating evidence came from a "jailhouse snitch" Scott Moffitt. Appellant claims that this court must examine Moffitt's testimony in a manner similar to how we review accomplice testimony, such that Moffitt's testimony must be substantial enough, standing alone, to independently prove Appellant's connection to the murders. The record reflects that the only arguments Appellant raised in connection with his motion for a directed verdict on both the capital-murder charges and the kidnapping charge centered on the sufficiency of the evidence and whether the State met its burden with corroborating the accomplice testimony. Appellant did not make an argument that the court should adopt a new standard and require corroboration for testimony of a "jailhouse snitch."
This court has repeatedly held that appellants are precluded from raising arguments on appeal that were not first brought to the attention of the trial court. See, e.g., Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005); Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005); Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). Issues raised for the first time on appeal will not be considered because the trial court never had an opportunity to rule on them. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003). Thus, because Appellant did not argue below that the testimony of a "jailhouse snitch" needs to be examined under a standard similar to that used for corroborating accomplice testimony, it cannot be raised on appeal.
We now turn to that part of Appellant's argument that was preserved for our review. It is well settled that we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Gardner v. State, 364 Ark. 506, 221 S.W.3d 339 (2006); Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. The requirement that a defendant make a specific directed-verdict motion extends to any challenge to the sufficiency of the evidence corroborating an accomplice's testimony. Gardner, 364 Ark. 506, 221 S.W.3d 339; Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).
As stated earlier, Appellant was convicted of capital murder and kidnapping. Ark. Code Ann. § 5-10-101(a)(4) (Supp.2005) states, in relevant part:
(a) A person commits capital murder if:
. . . .
(4) With the premeditated and deliberated purpose of causing the death of another person, he or she causes the death of any person[.]
Ark.Code Ann. § 5-11-102(a)(4) (Repl. 1997) states, in relevant part:
(a) A person commits the offense of kidnapping if, without consent, he restrains...
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