Grillot v. State, CR01-00792.

• Decision Date: 22 May 2003
• Docket Number: No. CR01-00792.,CR01-00792.
• Citation: 107 S.W.3d 136
• Parties: ERIC Z. GRILLOT, APPELLANT v. STATE OF ARKANSAS, APPELLEE.
• Court: Arkansas Supreme Court

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ERIC Z. GRILLOT, APPELLANT v. STATE OF ARKANSAS, APPELLEE.

No. CR01-00792.

Supreme Court of Arkansas.

May 22, 2003.

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT, NO. CR-98-52, HON. DAVID LEE REYNOLDS, JUDGE. AFFIRMED.

ANNABELLE CLINTON IMBER, Associate Justice

Appellant Eric Z. Grillot was convicted by a jury of first-degree murder, aggravated robbery, theft of property, and hindering apprehension, and now raises five points on appeal. Grillot first argues that the circuit court erred in refusing to suppress his confessions. He also challenges the sufficiency of the evidence to support his convictions. For his third and fourth points, Grillot claims that the circuit court erred in denying his motion for a new trial based on juror misconduct and erred in refusing to allow defense counsel to argue different burden-of-proof standards in closing argument. In his final point, he contends that themodel jury instruction for capital murder contains an incorrect statement of the law and that it was error for the circuit court to instruct the jury on lesser-included offenses.

On February 14, 1998, Eric Grillot left his home in Alabama with Jeremy Phillips and his roommate Will Jackson. The three were going to drop Phillips off in Arkansas where his family lived. They drove all night in Jackson's truck and were stopped by law enforcement officers once in Dumas for speeding while Grillot was driving. Upon arriving in the Fairfield Bay area about 7:00 a.m. on the morning of the 15th, the three stopped at the home of Grillot's parents in Shirley where they visited for one or two hours. Jackson had never been to Fairfield Bay, so they drove him around showing him the area. During the drive, they stopped at a gas station in Greers Ferry where Phillips purportedly made some phone calls in an attempt to obtain marijuana. Eventually, they went to a remote undeveloped area of Fairfield Bay, known as "the Rocks," and waited for delivery of the marijuana.

All three men were sitting in the truck, Grillot in the driver's seat, Jackson in the front passenger seat, andPhillips in the back seat behind Jackson, when Phillips put a .44 caliber pistol to the back of Jackson's head and shot him, killing him instantly. The evidence is disputed as to whether Grillot was awake at the time of the shooting. Nonetheless, after Jackson was shot, Grillot drove the truck a short distance to some trees and helped Phillips remove the body and drag it into the woods. Phillips wiped some blood off the back of the seat, and then Grillot drove Phillips to his mother's house and dropped him off before heading back to Alabama in Jackson's truck.

When he reached Alabama, Grillot abandoned the truck at a storage facility and walked home. He made a phone call to his parents to let them know he had made it back to Alabama safely and then went to work. Later, he threw the keys to the truck and Jackson's wallet into a nearby canal. The next day, Jackson's father called and asked if Grillot had seen Jackson. Grillot told him that the last time he saw Jackson was just before he went to work after the two of them had returned to Alabama. Grillot also told Jackson's father that Jackson had received a job offer in Florida, so he might have gone there. On February 20, 1998, Jackson's father filed a missingperson's report with the Baldwin County Sheriff's Office in Alabama.

Subsequently, after Jackson's abandoned truck was found by Alabama law enforcement officers, Grillot was called in for questioning on March 2, 1998. At that time, he told a deputy with the Baldwin County Sheriff's Office that he had gone with Jackson to drop Phillips off in Arkansas, and had not seen Jackson since they returned to Alabama. A short time later, Grillot moved back to Arkansas to live with his parents.

On March 10, 1998, the Van Buren County Sheriff's Office questioned Grillot and Phillips following receipt of the missing person's report that listed Grillot and Phillips as the last two people seen with Jackson. Grillot told the Van Buren investigators the same story he had previously told to the Sheriff's Office in Baldwin County, Alabama. Then, on March 13, 1998, Jackson's body was found where Grillot and Phillips had left it in the woods. Grillot and Phillips were picked up and transported to the Van Buren County Sheriff's Office for further questioning. It was at this point that Grillot admitted helping Phillips get rid of the body and evidence of the murder. However, he denied knowing anythingabout Phillips's plan to kill Jackson. He stated that he was asleep in the driver's seat of the truck at the time Jackson was shot. According to Grillot, Phillips had told him that he had been hired to kill Jackson. Moreover, Grillot claimed Phillips agreed to give him $3,000 "for his trouble."

Phillips himself confessed to shooting Jackson. His story, at that time, aligned with Grillot's version. Phillips said that Grillot did not know about the murder-for-hire contract. Phillips subsequently pleaded guilty to first-degree murder and was sentenced to life imprisonment.

Initially, Grillot was charged with hindering apprehension, aggravated robbery, and theft of property. However, Phillips changed his story and told the police that Grillot knew about the murder-for-hire contract and helped with its planning and commission. According to Phillips, they had agreed for him to take the fall, but because Grillot began saying bad things about him, he decided to tell the truth. As a result, the information filed against Grillot was amended to include a count of capital-felony murder.

Grillot's case went to trial on August 23, 2000. On August 24, 2000, following voir dire and jury selection, one juror disclosed to the court that he had come into contact with Grillot's sister after she overheard him talk with his wife about the case. The court proceeded to conduct an in camera hearing, and the State moved to have the juror removedfor cause. Grillot objected to the State's motion, and the circuit court ruled against the State.

At the conclusion of the three-day trial, Grillot was convicted of first-degree murder, aggravated robbery, theft of property, and hindering apprehension. He was sentenced to a total of twenty years' imprisonment. Grillot appealed his convictions to the Arkansas Court of Appeals, which then certified the case to this court. We accepted certification and now affirm the convictions. I. Sufficiency of the Evidence

Preservation of Grillot's right against double jeopardy requires that we consider his challenge to the sufficiency of the evidence before we consider alleged trial error even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872. In order to contest the sufficiency of the evidence to support a conviction on appeal, the defendant must move for a directed verdict at the close of the prosecution and again at the close of all the evidence. Ark. R. Crim. P. 33.1(a); Doss v. State, 351 Ark. 667, 97 S.W.3d 413. Moreover, we have made it clear that a defendant, in making his motions fordirected verdict, must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State's proof in his motion. Brown v. State, 347 Ark. 308, 65 S.W.3d 394.

At the close of the State's case-in-chief, Grillot made the following argument:

[D]efense moves for a directed verdict as to Count 1, Capital Murder. On that basis, Judge, the evidence is clear that there is no underlying felony that has been proven in this case. . . . Jeremy Phillips [testified] he did it for premeditation, that he basically did it for hire. . . . [T]he State would have to show that Eric Grillot is an accomplice. There is no testimony whatsoever that shows Eric Grillot is an accomplice to Jeremy Phillips in that ____ when he committed those murders. The statements and testimony is that basically Jeremy Phillips did this on his own, that anything Eric Grillot did was basically to cover up the murder, not to aid, abet or assist in the murder which was under the accomplice theory. So, we would ask for a directed verdict on the capital murder charge.

Then, at the conclusion of all the evidence, Grillot moved for a directed verdict stating:

[A]s to count 1, capital murder[,] . . . [t]he evidence is clear that Jeremy Phillips was the person who pulled the trigger and the person who shot Will Jackson. That fact is uncontroverted. The only way that Mr. Grillot can be guilty of capital murder would be if he is found to be an accomplice; that he aided and abetted in the planning and the only evidence that indicates that thatmay have been true is Jeremy Phillips' statement. . . . Which is uncorroborated. The law is that his statement has to be corroborated with some evidence, independent evidence, to indicate the charges will be true. As the court said . . . at the end of the State's case[,] the only evidence the Court could find would be circumstantial evidence but felt circumstantial evidence was sufficient to go to the jury. Circumstantial evidence is not sufficient uncorroborated to make a finding that Eric Grillot was an accomplice. . . . [M]y understanding is that the State is amending the charge to add murder for hire. Well, the testimony is that the murder for hire was ___ was an act with Jeremy Phillips the shooter, testified that he was hired to do that. His testimony was that Eric did not plan. Again, that is accomplice testimony. It is uncorroborated. The only evidence we have of that is what Jeremy Phillips says. So as to the capital murder charge I move for a directed verdict on that charge.

As a threshold matter, the State contends that the motion for directed verdict quoted above is insufficient to preserve a sufficiency challenge to his first-degree murder conviction because the directed-verdict motion addressed only the capital murder charge...