Henderson v. State
Decision Date | 11 January 1993 |
Docket Number | No. CR,CR |
Citation | 844 S.W.2d 360,311 Ark. 398 |
Court | Arkansas Supreme Court |
Parties | Wilburn A. HENDERSON, Appellant, v. STATE of Arkansas, Appellee. 92-579. |
Gerald A. Coleman, West Memphis, Therese H. Green, Memphis, for appellant.
Olan W. Reeves, Asst. Atty. Gen., Little Rock, for appellee.
Appellant has been tried three times for the capital murder of Willa Dean O'Neal. Appellant's first trial ended in a mistrial. In the second trial, he was convicted of capital murder and received the death penalty. We affirmed his conviction and death penalty sentence in Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). Appellant then sought and received a writ of habeas corpus from the federal court. Henderson v. Sargent, 926 F.2d 706 (8th Cir.1991) The state retried the appellant, and he was again convicted of capital murder and received the death penalty. Appellant appeals to this court from his second conviction raising seven points of error. We affirm.
At approximately 2:00 p.m. on November 24, 1981, Willa O'Neal was found murdered in the furniture store she owned with her husband. The store's cash register was found opened and money was missing. The police had the following evidence against the appellant. Appellant fled to Houston when he found out he was a murder suspect. While he was incarcerated in Houston, he gave a statement saying that, while he was in the store at the time of the shooting, Ollie Brown was the triggerman. At the crime scene, the police found a piece of paper which showed a floor plan of a rental property and the phone number for the real estate agent. Appellant had been seen with this piece of paper a few days prior to the murder and had contacted the real estate agent and set up an appointment to see the property. Further, a few days before the murder, appellant had removed a .22 caliber pistol from a pawn shop and repawned that same pistol a few days after the murder. A .22 caliber pistol was the murder weapon, but ballistic experts could not eliminate nor positively identify appellant's pistol as the murder weapon.
In his first issue, the appellant argues that the trial court erred in denying his motion to suppress his in-custody statement. We first note that the state argues that we should dismiss this argument under the doctrine of law of the case because the appellant raised this issue in the first appeal. The doctrine of law of the case prevents an issue raised in the first appeal from being raised in the second appeal, unless the evidence materially varies between the two appeals. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). The law of the case doctrine is not applicable here, because the appellant argues for the first time that his statement should be suppressed because of mental illness.
Appellant introduced testimony from two psychiatrists that the appellant had a prior history of mental illness and was diagnosed in 1962 as being schizophrenic. The State Hospital examined the appellant in 1981, the year he gave his statement to the police, and found no indication of psychosis.
In considering a motion to suppress an in-custody statement, this court makes an independent determination of the voluntariness of a confession, but does not set aside the trial judge's finding unless it is clearly against the preponderance of the evidence. See Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). In determining whether a statement is voluntary, this court considers the following factors: age of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id.
Applying these factors to the facts of the present case, the appellant was thirty-eight at the time of the statement. He was incarcerated for two days in the Houston jail before the Fort Smith police officers arrived to question him. Captain Larry Hammond testified that the appellant signed the rights waiver, appeared to understand his rights and told the officers he would talk without a lawyer present. Further, appellant's own witness, Dr. Showalter, testified that the appellant was not retarded and had a basic level of intelligence. Based on these factors, we cannot say that the appellant's statement was not voluntary. While the appellant's witnesses established that he had a prior history of mental illness in 1962, the State Hospital examined the appellant around the time of the murder and the giving of his statement in 1981 and found no evidence of psychosis. Appellant's own witness admitted that, while the appellant was diagnosed as being schizophrenic in 1962, those symptoms could have "burned itself out" by the time the appellant was examined in 1981. Lastly, we note that the appellant argues that Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), is controlling on this case. In Mauppin, the appellant had a self-inflicted gunshot wound to his head and had undergone brain surgery. The State Hospital found that Mauppin was unaware of the charges and proceedings against him. Clearly, the facts in the present case are distinguishable from Mauppin.
In the second issue, the appellant argues that the trial court erred in allowing the state to introduce into evidence a prior consistent statement of a rebuttal witness. Appellant's trial strategy was to point the finger at the victim's husband, Bob O'Neal. Evidence was presented to the jury showing that Bob was the last person to see the victim alive when he returned to the store to eat lunch. The state called Clarence Wilson as a rebuttal witness. Mr. Wilson testified that he saw the victim after 1:00 p.m., and at that time the victim told him that her husband had just been there for lunch but had returned to the job site. On cross-examination, the appellant established that Mr. Wilson did not testify to this fact in the federal habeas corpus proceeding. On re-direct, the trial court allowed the state to use a prior consistent statement that Mr. Wilson had told the police that when he last saw the victim she told him that her husband had just left.
Ordinarily, evidence of prior consistent statements is not admissible to bolster credibility because it is hearsay. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). However, A.R.E. Rule 801(d)(1)(ii) provides for the following exception:
A statement is not hearsay if:
(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, ...
This court has stated that when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath, it is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). Such is the situation in the present case.
In the third issue, the appellant argues that the trial court erred in denying his motion for a continuance between the guilty and penalty phase of the trial. The jury returned with its verdict after 5:00 p.m., and the...
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