Hall v. State, CR

• Decision Date: 01 June 1982
• Docket Number: No. CR,CR
• Citation: 634 S.W.2d 115,276 Ark. 245
• Parties: Luther HALL, Appellant, v. STATE of Arkansas, Appellee. 81-130.
• Court: Arkansas Supreme Court

Page 115

634 S.W.2d 115

276 Ark. 245

Luther HALL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 81-130.

Supreme Court of Arkansas.

June 1, 1982.

Rehearing Denied June 28, 1982.

Robert A. Newcomb, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

On June 16, 1980, Luther Hall acted as a lookout while his two accomplices killed Leonard Jones and Carl Jackson by shooting them repeatedly while they were tied up in the trunk of a car. After that the three men decided to rob Rosemary Bogard and killed her in the course of that felony.

Hall was first tried separately for the capital murder of Jones and Jackson, was found guilty, and was sentenced to life imprisonment without parole, the State having waived the death penalty. About 70 days later Hall was tried for the capital felony murder of Rosemary Bogard, was found guilty of second degree murder, and was sentenced as an habitual criminal to 30 years' imprisonment, to run consecutively to the life sentence. The first case was appealed to this court. The second case was transferred to us and consolidated with the first one, because related issues with regard to Hall's confession are involved. Four points for reversal are presented.

First, it is argued that Hall's confession should have been excluded as having been involuntary. Hall was arrested on a warrant one Friday morning and after having been warned of his rights was interrogated for some time, but he made no statement. He was not questioned on Saturday or Sunday. On Monday morning he was taken before the municipal court, where the judge again explained his rights and explained the charges and the right to appointed counsel. Hall said that he would retain his own counsel. Upon being returned to the jail Hall said he wanted to make a statement, apparently to give his side of the occurrences as opposed to that of the other two suspects. After being informed of his rights for still a third time Hall made a detailed statement, which was tape recorded. The statement covered both criminal episodes, but only that part relating to the killing of Jones and Jackson was eventually read to the jury at the first trial.

The voluntariness of the confession turned almost entirely upon matters of credibility. No physical mistreatment of any kind is alleged, but there were conflicts in the testimony about whether Hall was allowed to make telephone calls or was promised leniency. Having given due weight to the trial judge's advantageous position in the resolution of such conflicts, we cannot say his decision was clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

Second, at the close of the State's proof defense counsel moved for a directed verdict because of a supposed fatal variance between the information and the proof, in that the information charged that the defendants, with the purpose of causing the death of "another" person (instead of "any" person, as the statute reads, Ark.Stat.Ann. § 41-1501(c) (Repl.1977) ), caused the death of Jones and Jackson. The trivial variance in wording had no prejudicial effect whatever upon Hall's substantial rights and does not call for serious discussion. For more than a century it has been the state's policy to disregard such defects. Ark.Stat.Ann. § 43-1012 (Repl.1977).

Third, since the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the trial judge determines the voluntariness of a confession after an in-chambers hearing and is not required to resubmit that issue to the jury. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972); Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965), cert. denied 384 U.S. 1016, 86 S.Ct. 1985, 16 L.Ed.2d 1039 (1966). Consequently, as explained in AMCI 200, Comment, the Arkansas model criminal jury instructions do not include an instruction with respect to confessions, because the weight and credibility of the testimony are matters to be argued by counsel.

Nevertheless, the trial judge is free to submit the issue of voluntariness to the jury if he thinks it to be appropriate. Here the trial judge said he was submitting the issue because he was asked to do so by the prosecution and by the defense. As between the two instructions that were offered, he gave the State's instruction after modifying it to include an explanation that the presumption that an in-custody confession is involuntary must be overcome by the State by a preponderance of the evidence.

The two tendered instructions were substantially similar, but it is argued that the State's instruction, given by the court, was defective in two respects: First, it did not specifically refer to a promise of leniency. It did, however, refer to any promise or favor, which was certainly...